-- Case managementThermawear Ltd v Linton & another CA (1995) The Times, 20 October, brings together the hot topics of case management under Lord Woolf's review and conditional fees.

The Court of Appeal indicated that it would be reluctant to interfere with procedural decisions made by a trial judge in the management of the case before him.

The trial judge in this case had concluded that specific issues should be tried ahead of other issues on the basis that if the plaintiff failed on the first issues the action itself would fail and the costs of exploring the other issues could be avoided.

Reference was made to the practice Direction on Case Management [1995] 1 WLR 508 and Ashmore v Corp of Lloyds [1992] 1 WLR 446.

Thermawear confirms that the judge already has wide discretion in case management and that both sides should think strategically about issues and costs.

This is useful in any litigation.

It is essential to risk management skills when taking on conditional fee cases.-- MultipliersThe debate over multipliers has been raging for some time, and arguments for the plaintiff received a boost earlier this year in Wells v Wells, a decision by Judge Wilcox on 13 June 1995.

Plaintiffs received a further boost from Thomas v Brighton Health Authority (1995) The Times, 10 November, in which Mr Justice Collins reviewed the case law and adopted multipliers based on a net return of 3%.

After hearing arguments from accountants on both sides, the trial judge determined that the test was not whether it would be prudent to invest in equities, but whether to invest in index linked gilts would achieve the necessary object with greater precision.

The judge was informed that practitioners were in a state of uncertainty and responded by indicating that he could not allay practitioners' concerns.

It was the function of the appellate courts to give guidance to others.It is understood that the case is being appealed and that such guidance will therefore be forthcoming.

Meanwhile, the clarity of this judgment combined with previous unreported decisions gives strong arguments to the plaintiffs in the many thousands of cases that are affected by a move on multipliers.-- Air crash compensationThe Warsaw Convention of 1929 still governs the rights of those injured or killed in air crashes.

These rights include an upper limit of compensation, which was the focus of media attention most recently in cases arising from the Chinook crash at the Mull of Kintyre in June 1994.

In spite of widespread acceptance that such limits are out of date reform has been slow to come, but at last real progress is on the horizon.

In June the International Air Transport Association (IATA) negotiated an agreement in principle to raise the limits to approximately £250,000 with certain jurisdictions, such as the US, providing for unlimited compensation by inter-carrier agreements.

There was a poignant reminder of the tragedy that air crashes can bring with the award on 20 November in excess of £1.4 million to Stephen McCoy, a passenger on the British Midland Airways Ltd plane which crashed at Kegworth on 8 January 1989.

However, as one item of good news for the air travelling public emerges, so does another more worrying aspect.

Following the decision in Paris of passengers taken hostage in Kuwait after travelling there on British Airways Flight 149 in August 1990, similar cases are proceeding in this country to the House of Lords.

The case of Sidhu & others v British Airways plc was set down for hearing on 15 November and referred to an appellate committee, and Abnett (known as Sykes) v British Airways plc, a Scottish ca se, also appears in the minutes of proceedings for that day.

These cases concern whether or not a plaintiff's claim at common law is excluded by the terms of the Carriage by Air Act 1961 which incorporates the Warsaw Convention.

However, certain obiter remarks have been construed as concerning whether or not victims of air crashes and accidents during the course of air travel can recover for trauma on the basis that this does not come within the definition of 'bodily injury' contained in the Warsaw Convention.

It is unlikely that the House of Lords will resolve the issue in the context of these two cases but there are several cases elsewhere in the pipeline which could litigate the point.-- Trespasser's rightOther personal injury cases include Revill v Newberry (1995) The Times, 3 November, which attracted widespread publicity.

The plaintiff was awarded damages for personal injury after having been shot by the defendant whilst trying to break into the defendant's home.

The Court of Appeal indicated that a plaintiff who is a trespasser and engaging in criminal activity is still entitled to damages in a situation where the defendant uses unreasonable violence.

-- Employer's dutyMains v Uniroyal Englebert Tyres Ltd (1995) The Times Scots Law Report 29 September indicates that the duty of an employer under s.

29(1) of the Factories Act 1961 is to make and keep a place of work safe from risks or dangers regardless of whether or not they are foreseeable.-- Plaintiffs abroadSeveral cases dealing with plaintiffs resident abroad bringing claims for damages for personal injuries against defendants resident in this jurisdiction involving process liability have also hit the headlines.

These include Ngcobo & others v Thor Chemicals Holdings Ltd & others [1995] The Times, 10 November, where the Court of Appeal indicated that a defence is inconsistent with the defendants' objection to the English courts' continued jurisdiction over the merits of the case, and Connolly v RTZ Corporation plc & another [1995] The Times, 20 October, where the Court of Appeal indicated that the availability or otherwise of legal aid in a foreign jurisdiction where a case might be tried was not a relevant consideration to be taken into account when applying the principles of forum non conveniens.-- Cases against the MoDThe Crown enjoys many procedural privileges as set out in RSC ord 77.

In particular, rules concerning applications for summary judgment, default judgments, service of a third party notice, discovery and venue are all different.

Where there has been a failure to comply with an order for discovery, RSC ord 77 r.15(1) is relevant.

This rule indicates inter alia that contempt proceedings are not available against the Crown.

These rules are relevant to litigators suing the ministry of Defence in personal injury actions and have caused some difficulty.

This could well be another fruitful area for Lord Woolf.-- Criminal injuries The criminal injuries compensation scheme received royal assent on 8 November.

The compromise scheme maintains a tariff basis with a maximum award of £500,000.

In addition, the new scheme allows the claimant to structure the award and the Criminal Injuries Compensation Act allows cases under the existing scheme to do the same.FAMILY LAW-- Fee disparityWhen is something 'special' but not 'exceptional'? When it is counsel's fees, in respect of which an uplift is sought.

Solicitors must show 'exceptional' circumstances to obtain their mark-up, but counsel need only establish 'special' circumstances.

A nd that, held Cazalet J (with assessors) in E v F (Costs: Ancillary Relief) [1995] 2 FLR 702, gives solicitors a higher hill to climb than counsel if they are to achieve the same rate of mark-up or increase on standard fees.The Oxford Thesaurus 1991 gives as its first alternative to 'exceptional' the word 'special'.

As its third alternative to 'special' it gives the word 'exceptional'.

This makes the type of reasoning employed by Cazalet J difficult to sustain: '"Exceptional" stands out as striking.

"Special" arises in less rare circumstances.' However, in the days of parity of advocacy, especially in the family division, how can such reasoning be seriously justified? Does Cazalet J realise that it is perfectly possible for a solicitor to appear for one party, against leading counsel, with a junior and an instructing solicitor? On legal aid taxation it would be very difficult for a solicitor to obtain above £1000 for one day's work.

By contrast, it would be surprising if three of his opponents did not command three or four times his fee for the same day's work, and a similar multiplier would apply to much of the preparation work.-- Child support evidenceIn E v C [1995] The Times, 4 December, Douglas Brown J expressed the view that, in considering a variation of periodical payments for children, magistrates should take into account child support maintenance according to the formulae in the Child Support Act 1991.

The resultant figure, however, would not be binding upon them.

If the dictum achieves its deserved prominence then, at the very least, it must require practitioners to be aware of, and properly to calculate, child support figures on any application for a variation of child periodical payments.-- Statutory charge revisitedIt is beyond the scope of this piece to consider the Family Law Bill in any detail.

Those concerned with amendment of the Bill might note cl 23(1), which appears amongst the proposed amendments to the Legal Aid Act 1988, consequent to mediation being introduced into family proceedings.

The proposed 13C(4) to the Legal Aid Act enables the Lord Chancellor to provide that the cost of mediation is borne by the statutory charge and to provide this by regulation, the modern means by which much statutory provision emerges in the family law field.S.13C(5) contains a chilling provision enabling the Lord Chancellor - again by regulation - to define 'circumstances in which property is to be taken to have been...recovered or preserved'.

Thus, at a stroke of his Chancellorly pen, Lord Mackay ( or his successor) can overturn centuries of accretion of law as to how the statutory charge arises - namely where property is 'in issue in the proceedings' (Hanlon v Law Society [1981] AC 124; and see Legal Aid Act 1988 s.16 (6)).

The statutory charge may be due for overhaul, but this is not the way to do it.EMPLOYMENT LAW-- Transfer of undertakingsTransfer of undertakings (protection of employment) (TUPE) decisions generally have something to tickle the fancy.

And the decision of the Employment Appeals Tribunal (EAT) in Birch and others v (1) Nuneaton and Bedworth borough Council and (2) Sports and Leisure Management Ltd [1995] IRLR 518 (reserved decision given on 21 June 1995) is no exception.The case concerned the contracting out of local authority sports and leisure centres to an external contractor, SLM.

There was substantial and detailed contract documentation.

When Mrs Birch and her colleagues were dismissed by the Council at the end of 1991, they claimed unfair dismissal on the basis that there was a transfer of an undertaking.At that time undertakings 'not in the nature of a commercial venture' were excluded from the TUPE regulations.

Whilst the industrial tribunal had held that this phrase was 'to be confined to charities or undertakings with a charitable purpose' (and that the council's operations fell within this pursuant to the Recreational Charities Act, 1958), the EAT held that this was 'an incorrect legal test'.

The correct approach was to consider all the relevant factual circumstances and factors in the context of the purpose and scope of Dir (77/187).

A public authority activity may meet the test if it charges the public for services or carries on management, administration and accounting methods similarly to commercial venture.

Whilst the 'commercial venture' issue is a dying species, this may assist those handling matters rooted in past law.Despite the council's retaining 'overall control of almost every aspect of the facilities', there was a transfer of an undertaking - namely the management of leisure facilities.

In fact, the EAT said: 'The degree of control confirms the transfer by emphasising the retention of the identity of the management part of the undertaking in different hands.

If similar activities are continued in different hands, the identity of the undertaking is retained, a transfer occurs, the employees follow the work and protection is enjoyed by the employees.' The decision's basic principles are consistent with the broad tide of ECJ case law.