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CIVIL ADVOCACY Madam, Have you had an opportunity to read my skeleton argument?
And do you have a copy of the bundle?
As you will see from paragraph 1 of my skeleton argument, today we seek to resist the application for summary judgment, pursuant to CPR 24.2. In addition we week to resist the application for strike out of the defence pursuant to CPR 3.4(2)(a) and ask the court to make an order requiring the Respondent to clarify his defence or give additional information about it under CPR 18.1. The relevant facts for this application are laid out in paragraphs 3-7 of my skeleton argument. Madam, would you like a summary of the facts?
FACTS: The Defendant runs and owns Fineshade Antiques (the shop). On 20th December 2013, C was visiting the shop, intending to view what she believed to be a rare Clarice Cliff Sunspots vase which D's nephew, Mr. Charlie Hughes had mentioned he was expecting that day. Mr. Charlie Hughes accidentally spilt some linseed oil on the floor of the shop and specifically in the gangway towards the back of the store. He had then positioned some old paintings where the spillage was, to create a temporary blockade. C entered the shop and was keen to check for herself the vase that she believed had arrived that day. Upon her entering the shop, Mr. Charlie Hughes informed her that the rear of the shop was an area that she should not go, and he also called out to warn her when he saw her approaching the area as the paintings were old and because of the dangerous surface C then voluntarily stepped over the old paintings in spite of the barricade and she slipped on the linseed oil on the floor. This caused her to fall to the floor and injure her face and neck.
TEST Madam, the relevant tests for this application, as I am sure you are familiar with, are set out in the following paragraphs, those being paragraphs 8 and 9. Pursuant to CPR 24.2, summary judgment may not be granted if:
- The Defendant has a real prospect of successfully defending the claim, AND
- There is any other compelling reason for there to be a trial. In addition, Pursuant to CPR 3.4(2)(a) the defence may be struck out if it discloses no reasonable grounds for defending the claim. PRELIMINARY ISSUE Before I move to my submissions Madam, there appears to be an issue regarding the fact that the Witness Statement for the Respondent was served this morning. This is because the Respondent did not seek legal advice until yesterday afternoon. He was facing personal problems, as his father has recently died and he was also dealing with the break up of his civil partnership. But as soon as he found out that he should serve a Witness Statement, that is yesterday afternoon, acted promptly. As soon as his WS was prepared by his solicitors, he signed it, it was immediately sent to the Applicants, and was given to the usher at the first available opportunity. And for this reason I urge the court to allow his WS to stand as evidence. SUBMISSIONS Madam, it is the Respondent's case, that he has a real prospect of successfully Defending the Claim
There are other compelling reasons for trial, And the defence should not be struck out. I will make 6 submissions; these are set out in paragraphs 1930 of my skeleton argument. Firstly, That the duty of care was discharged, Secondly, that the Applicant was Contributory Negligent Thirdly, That the Applicant willingly accepted the risk, Fourthly, the complexity of the issues Fifthly, That a Material Witness is unavailable and Finally, the strike out of the defence. I will address each of these in turn. With your permission I will now move on to my first submission, which can be found at paragraph 19 of my skeleton argument. It is submitted that the Applicant has discharged her duty of care pursuant to the Occupiers Liability Act 1957, s 2(4)(a). Madam, there appears to be limited evidence from the Applicant regarding the events in the shop prior to the fall, and for this reason this submission will mainly focus on the Respondent's evidence. If I could refer you Madam to paragraph 5 of the Respondent's WS. It can be found on page 18 of the bundle. He says that Mr. Charlie Hughes had put barriers in the shape of paintings up to the point where the oil was spilt. The Applicant therefore, could not go to that area as the paintings prevented her from entering. The only way she could go there was by stepping over the paintings, which is not something a reasonable person would have
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