Permission to appeal was refused twice, did the fall actually take place?
If you are a personal injury litigator, then you need to be aware of the decision in Harrison v TUI UK Ltd  EWHC 2557 (KB) as the permission to appeal was refused twice due to very limited and inconsistent supportive evidence and Particulars of Claim!
The Appellant fell at a Portuguese resort hotel on a package holiday which he and his wife purchased from the Respondent on 10 June 2014. The Appellant and his wife parted company outside a lift in the hotel, the Appellant’s wife took the lift to go to their bedroom and the Appellant went for a walk. The Appellant sued the Respondent due to the absence of any handrail outside the emergency door which, he averred, caused his fall.
The Appellant was the unsuccessful party as the Judge observed that there was “very limited evidence” and believed it is more likely the Appellant went out of the external door next to the lift rather than the emergency door, with the Appellant failed to prove that the fall resulted from the absence of a handrail outside of the emergency door.
The Appellant’s Counsel then made an application to amend the Particulars of Claim which led to the Second Judgment, in which the Appellant changed the way the incident occurred to “he had found himself on his walk outside the emergency door – which could not be opened from the outside – and, in the absence of a handrail, had fallen down the rockery onto the service road.”. The Judge ruled in the same terms as the First Judgment, as the amended pleading would not have altered his decision, and the application for permission to appeal was refused.
The Appellant put in a renewed application for permission to appeal, which Mr Justice Fordham refused as the case could not be proved with reference to the facts and evidence.
The judge stated “the points advanced by the Appellant, whether viewed individually or in combination, no arguable appeal with a realistic prospect of success”, “the points advanced” refers to the three ‘scenarios’: (i) the pleaded claim with which he had dealt in the First Judgment (the scenario in which the incident had arisen after the Appellant exited to the emergency door); (ii) the alternative scenario which was the subject of the application to amend (in which the incident had arisen after the Appellant had approached the emergency door from outside after walking along the path and then falling down the rockery and onto the service road); and (iii) the scenario in which neither of those things happened but rather the Appellant had fallen in the service road.
This means the permission to appeal is refused and the costs of the application are not recoverable as the Court has ordered “There has been no attendance by a legal representative to make submissions for the Respondent at this hearing and there will be no order as to costs”.
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