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IN THE COUNTY COURT AT LANCHESTER No. LC15 6697
BETWEEN: MISS SOPHIA DUNCAN Applicant/Claimant and MR TIMOTHY MELROSE - HUGHES T/A FINESHADE ANTIQUES Respondent/Defendant
SKELETON ARGUMENT OF THE RESPONDENT In this Skeleton argument, "[SD 1]" refers to the witness statement of the Applicant at paragraph 1. Likewise "[TMH 3]" refers to the witness statement of the Respondent at paragraph 3. Page numbers refer to the pages in the bundle of documents. Introduction:
1. This is the Claimant's application, under CPR, r.24.2, for summary judgment. The Defendant says that he has a real prospect of successfully defending the claim and there is a compelling reason for trial, within the meaning of r.24.2.
2. Further or alternatively, this is the Claimant's application, under CPR, r.3.4(2)(a) for a strike out of the defence. The Defendant says that the claim should not be struck out and the judge should make an order under CPR, r.18.1 requiring the Defendant to clarify his defence or to give additional information about it. The Relevant Facts:
3. The Defendant runs and owns Fineshade Antiques (the shop). On 20th December 2013, the Claimant was visiting the shop, intending to view what she believed to be a rare Clarice Cliff Sunspots vase which the Defendant's nephew, Mr. Charlie Hughes had mentioned he was expecting that day. On the day in question the Defendant was in Malta [TMH 1] and Mr. Charlie Hughes was in charge of the shop. 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 [TMH 4-5].
The Claimant, who is a regular customer [TMH 6] entered the shop and was keen to check for herself the base 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 [TMH 5].
5. The Claimant, who was keen to acquire the vase at bargain price, particularly in the absence of the Defendant whom she knew was much more experienced in the antiques trade, voluntarily stepped over the old paintings in spite of the barricade and oral warnings from Mr. Charlie Hughes and she slipped on the linseed oil on the floor. This caused her to fall to the floor and injure her face and neck [SD 1].
6. Since that date, the Claimant states that she has experienced ongoing and progressive pain, and she was subsequently diagnosed as suffering from temporomandibular joint dysfunction. The Claimant claims that this is a direct result of the said fall [SD 2].
7. The Defendant says that given the fact that there were barriers in place to prevent people from entering the dangerous area, and that since the Claimant was warned, a duty of care was discharged. The Defendant also says that the Claimant was contributory negligent and she voluntarily accepted the risk. The Issues:
8. Whether under CPR, r.24.2: a) The Defendant has a real prospect of successfully defending the claim on the basis that the Claimant's duty of care was discharged, the Claimant was contributory negligent and the Claimant voluntarily accepted the risk. The Respondent will say that he has a real prospect of success. b) There is any other compelling reason why the case or issue should be disposed of at trial, on the basis that the Respondent is unable to contact a material witness who may provide material for a defence, and the case is highly complicated such that judgment should be given only after mature consideration at trial. The Respondent will say that there is.
9. Whether under CPR, r3.4(2)(a), the defence discloses no reasonable grounds for defending the claim. The Defendant will say that it discloses. The Law:
10. Section 2(2) Occupiers' Liability Act 1957 (OLA 1957) states that the
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