Menus
December 2015 Contents
Welcome to the December 2015 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The PI Brief Update Law Journal (PIBULJ) is accredited by the Solicitors Regulation Authority (ref EGB/LBPL) and the Bar Standards Board (provider ID: 2177). The CPD is also valid for CILEx (formerly ILEX) members and for members of the Chartered Insurance Institute. The quiz can provide 1.5 hours of CPD under the hours system. See our CPD Info page for further details including recent changes to the CPD system. Please check with the relevant organisations for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
| |
| Personal Injury Articles | |
Edwards v Kumarasamy: Landlords Tripped Up - Andrew Brookes, Anthony Gold
The Court of Appeal in Edwards v Kumarasamy has extended the liability of landlords who own flats in blocks, even where the common parts are owned by a third party... |
Editorial: Autumn Statement - Aidan Ellis, Temple Garden Chambers
Two potentially dramatic announcements were buried within the Chancellor's recent Autumn statement. Under the heading 'lower household bills', the Chancellor announced an end to the right to cash compensation for minor whiplash injuries... |
QOCS and Strike Out - Rebecca Jones, Hardwicke
There are many areas of the QOCS regime where the approach of the courts remains uncertain in the absence of detailed guidance in the CPR. We have seen reported cases regarding the fundamental dishonesty exception to QOCS but guidance regarding the strike out exception remains thin on the ground. This article covers some of the more recent developments in the realm of QOCS and strike out. |
APIL's Response to The Chancellor's Autumn Statement
George Osborne said yesterday that the government will consult on ending the right to cash compensation for minor whiplash injuries. In response, Jonathan Wheeler, the president of APIL said... |
Late Switch of Surgeon: Can This Invalidate Consent? Jones v Royal Devon and Exeter NHS Foundation Trust - James Counsell, Outer Temple Chambers
James Counsell reports on a successful claim based on lack of consent, in which a patient was told, only on the day of the operation, that her spinal surgery was not to be performed by the expected clinician. |
Court of Appeal Highlights the Importance of Not Imposing an Unrealistic Duty of Care on Motorists - Peter Blake, DWF
In a judgment unanimously upholding the first instance decision, the Court of Appeal provides a useful reminder of the importance of not imposing an unrealistic level of duty on motorists and demonstrates that expert evidence will not necessarily be determinative when high quality lay evidence is adduced... |
CPR 35.1: When Is Expert Evidence 'Reasonably Required'? Part 1 - Tom Collins, 1 Chancery Lane
Expert evidence is often talked of in terms of parties' 'rights', i.e. to a fair trial or for equality of arms. In the field of PI and Clinical Negligence, it is taken for granted that except in the clearest of cases, the Court will admit (often gratefully) expert opinion on condition and prognosis as well as liability and causation. However two recent... |
No Assignment of CFAs, Says the County Court - Geoffrey Weddell, 1 Chancery Lane
If a claimant is pursuing a personal injuries claim funded by a CFA, and the solicitors' firm goes into administration, can the CFA be assigned to a new firm? No, says the County Court at Liverpool. In Jones v Spiral Healthcare (unreported)... |
Prima Facie 'Fraudulent' Costs Claims Not to Be Struck Out Without Trial - Alex Bagnall, Just Costs Solicitors
The Court of Appeal has dealt with the question of how Courts should handle with allegations of the fraudulent misclaiming of costs where there is strong prima facie evidence in support of the allegations. |
Fixed Fees in Clinical Negligence Cases - Nina Ali, Jones & Allen
With the consultation on fixed fees in clinical negligence cases now delayed until early 2016, Nina Ali, partner at Hodge Jones & Allen, urges the Government to reconsider... |
Predictably Unpredictable: Fatal Claims in Scotland Remain Inconsistent and Uncertain - Andrew Lothian, DWF
It had been thought that Currie v Esure (2014) might operate as benchmark for awards in fatal cases in Scotland. That hope for clarity has however been set back by yet another fatal award which has introduced further uncertainty... |
Loss of Earnings and Disability in the Labour Market for Injuries Arising as a Result of Sexual Abuse - Gordon Exall, Zenith Chambers & Hardwicke
In BDA -v- Domenico Quirino [2015] EWHC 2974 (QB) His Honour Judge Wood considered the issue of loss of earnings in the case of a victim of sexual abuse. |
The 2015 Rehabilitation Code: Case Managers now required to adhere to NICE Guidelines - Daniel Clegg, DWF
At the end of September the IUA/ABI working party completed its review of the 2007 Rehabilitation Code of Best Practice by publishing the updated Code. In this article Daniel Clegg looks at the changes made to the part of the Code governing moderate, severe and catastrophic injuries and the newly introduced Guide for Case Managers... |
Practice, Procedure and Fair Proceedings in the Coroner's Court: Wilson -v- HM Senior Coroner for Birmingham and Solihull - Gordon Exall, Zenith Chambers & Hardwicke
In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] ewhc 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner's narrative verdict... |
The English Claimant and the French Uninsured Tortfeasor: Claims Against the MIB - Matthew Chapman, 1 Chancery Lane
Marshall & Pickard v MIB & Others [2015] EWHC 3421 (QB). These claims arose out of a road traffic accident in the municipality of Thiais, France on 19 August 2012. |
Stroke Caused by Beauty Facial Case Settles - Kiril Waite, 1 Chancery Lane
Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? |
PI Practitioner, December 2015
Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Apportioning liability between motorists and pedestrians in road traffic accidents. |
Summary of Recent Cases, December 2015
Here is a summary of the recent notable court cases over the past month. |
| An Update from North of the Border, Edited by David Stihler, Brodies LLP | |
Scottish Costs Reforms: Round up of Recent Scottish Decisions - Peter Demick, Brodies LLP
The year 2015 has seen significant developments in the Scottish litigation landscape, particularly flowing from the significant court reforms covered closely in our previous updates. However, it isn't just the court reforms that will determine the course of Scottish litigation in 2016. | |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
Post-Traumatic Embitterment: A Future 'Disorder'? - Dr Hugh Koch, Dr Karen Shannon, Dr Tom Boyd, Hugh Koch Associates LLP
In addition to experiencing anxiety and depression after a traumatic event, one very common undiagnosed or unrecognised symptom is anger, because the individual rightly or wrongly perceive that they have or had been treated badly (e.g. by the other driver or their employer), are not... | |
November 2015 Contents
 Welcome to the November 2015 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The PI Brief Update Law Journal (PIBULJ) is accredited by the Solicitors Regulation Authority (ref EGB/LBPL) and the Bar Standards Board (provider ID: 2177). The CPD is also valid for CILEx (formerly ILEX) members and for members of the Chartered Insurance Institute. The quiz can provide 1.5 hours of CPD under the hours system. See our CPD Info page for further details including recent changes to the CPD system. Please check with the relevant organisations for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
|
|
| Personal Injury Articles | |
 The Risks of a Fixed-Costs Regime for Clinical Negligence Cases - Catherine Dixon, Law Society Chief Executive Risk is defined as, 'a situation involving exposure to danger'. In 2012 a study was published by Sir Bruce Keogh, the medical director of the NHS in England, highlighting the increased risk of death for patients admitted to hospital at weekends compared to a Wednesday. Keogh then published a report calling on the NHS to adopt 10 standards to improve the quality of care available at weekends... |
 Gemma Purser v Robert Hibbs & Anor [2015] EWHC 1792 (QB) - Gary Knight, Harmans Consideration of the wording between "old" and "new" Part 36 requirements when offer accepted out of time... |
 Brian Kite v The Phoenix Pub Group: Addressing the Opportunistic Use of QOCS - Theo Barclay, Hailsham Chambers In this county court decision, a district judge made it clear that claimants who intend to bend the qualified one-way costs shifting (QOCS) rules to gain tactical advantage will be offered short shrift by the courts. This decision is a good illustration of the increasing tendency of district judges to tackle opportunistic conduct by court users robustly... |
 Overhanging Trees: Liability, Prevention and Defence of Claims - Gabriel Fay, DWF This year we have seen two major incidents of roofs being torn from buses where the vehicle has collided with trees overhanging the carriageway. The first was in February this year on the Kingsway, London where four people were injured and more recently, in August four people were taken to hospital after an incident in Bloomsbury, London... |
 Some Early Indications of Fundamental Dishonesty Interpretations: Nama v Elite Courier Company [2014], and a Comment on Facebook Evidence - Judy Dawson, Park Square Barristers Judy Dawson of Park Square Barristers Fraud Team, based in Yorkshire discusses the loss of QOWCS protection in fundamental dishonesty cases, with a commentary of the ongoing and evolving use of Facebook Evidence... |
 "All Experts Are Equal...": A Twelve Step Programme for Good Experts - Will Waldron QC, Exchange Chambers In a recent article looking at the role and duties of experts, and the ways in which some have fallen foul of them, I quoted from Janet Smith LJ in the case of Uren when she said: "When an expert witness makes a bad point, it damages his authority and his opinion on other potentially better points is undermined"... |
 Part 36 Offers: Whether Genuine Attempt to Settle - Andrew Cousins, DWF When Part 36 was reformed in April, one of the amendments was aimed at addressing "cynical Part 36 offers". The court always had to consider a number of factors when deciding whether it is unjust to award the additional benefits under Part 36 but a new factor was introduced in CPR 36.17(5)(e)... |
 Editorial: Reflections on Costs Management - Aidan Ellis, Temple Garden Chambers Now that costs budgeting has been a feature of civil litigation, at least on the multi-track, for some time, it ought to be possible to offer some considered assessment on the merits of the budgeting process. That it remains difficult to offer such an assessment is largely because the approach to budgeting remains inconsistent. It begins before the hearing... |
 Loss of Future Earnings and Disability - Andrew Spencer, 1 Chancery Lane A claimant is "disabled" for the purposes of Tables A - D of the Ogden Tables when s/he has an illness or disability which has or is expected to last for a year or more (or a progressive illness); which "substantially limits" the claimant's ability to carry out normal day-to-day activities; and which affects the kind or amount of paid work s/he can do... |
 Edward Bishop QC Considers Obstacles in Claims for Psychiatric Damage - Ian Miller, 1 Chancery Lane In Speirs v St George's Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental 'ventouse' birth. The judge dismissed the mother's claim on the grounds that she had not suffered a psychiatric injury as a result of... |
 Fixed Recoverable Costs Can Apply to Multi-Track Cases - Judy Dawson, Park Square Barristers The new fixed recoverable costs regime has been widely trumpeted as being exclusive to the fast track, indeed many Defendant insurance practitioners have been wary of pleading fraud, in case it results in a move to the multi-track and therefore an increase in costs. An important appeal judgment by... |
 Gamsby v Rowland - Mark Holmes, DWF Mark Holmes takes us through his case of Gamsby v Rowland, where the judge made a finding of fundamental dishonesty, even though fraud was not pleaded against the Claimant... |
 Fixed Costs in RTA, EL and PL Multi Track Claims - Ian Miller, 1 Chancery Lane A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA... |
 Time to Motor on With Reform - Matthew Channon Matthew Channon presents an analysis of the UK laws on motor insurance which seem to be non-compliant with European Law, and suggests some potential reforms... |
 Loss of Earnings and the Self-Employed: Some Key Issues - Gordon Exall, Zenith Chambers & Hardwicke Chambers Here I want to look at some of the issues that face the self-employed claimant when claiming loss of earnings. We also look at some of the key cases in relation to "loss of chance" in relation to the self-employed... |
 Test for Striking Out Before Trial - Thomas Crockett, 1 Chancery Lane The Court of Appeal recently held in Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685 held that the court should exercise caution in the early stages of a case in striking out the entirety of a claim on the grounds that a part had been improperly or even fraudulently exaggerated... |
 RTA Hearings - Peter Harthan, 7 Harrington Street Let's assume; i) There was a collision about which a correct description can be given; ii) Both drivers have different accounts of the same collision; iii) The accounts given by each party cannot both be correct... |
 Loss of Earnings: The Badly Injured Child and Pension Loss - Gordon Exall, Zenith Chambers & Hardwicke Chambers We have looked before at the approach that judges take when assessing loss of earnings in cases of badly injured young children. This issue was considered in the judgment of... |
| Summary of Recent Cases, November 2015 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, November 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Contributory Negligence in Road Traffic Accidents Involving Pedestrians |
| An Update from North of the Border, Edited by David Stihler, Brodies LLP | |
 Compulsory Volunteers: Will the Scottish Pre-Action Protocol Become Mandatory? - Ciaran Dougherty, Brodies LLP Previous updates from North of the Border demonstrate that Scotland's PI claim landscape is undergoing significant change. Court reforms and a review of the costs regime have scrutinised various parts of the claims process. That includes the pre-litigation stage where unlike... |
|
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Imagery and Likelihood Cognitive Bias in Pain Review - Michael Horwood & Hugh Koch Lawyers and experts come into contact with many claimants who complain of pain, both acute and chronic. This article reviews preliminary work on how claimants manager their 'images' of various things including pain and pain suffering... |
|
October 2015 Contents
 Welcome to the October 2015 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and the BSB. It provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL, and with the Bar Standards Board. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
|
|
| Personal Injury Articles | |
 Sports Risks: Duty of Care: Back to Basics - Dr Julian Morris, Parabis Law LLP It is quite usual to reach for a guide book when heading off to foreign climes or setting out for a country walk but to what extent can a reader hold a guide's producers legally responsible if something goes wrong while following their directions or advice? This point was tested recently... |
 The Scope of Negligence Liability of Those Suffering From Mental Illness - Richard Spearman QC, 39 Essex Chambers & Stuart Nicol Dunnage v Randall and another [2015] EWCA Civ 673, [2015] All ER (D) 49 (Jul). In a judgment handed down on 2 July 2015, the Court of Appeal stated how, in accordance with English law, the tort of negligence strikes a balance between individuals who by reason of... |
 Qualified One Way Costs Shifting - Mark Carlisle, Director of Deep Blue Costs and Consultant Law Costs Draftsman at Berlad Graham LLP The transitional provisions and Casseldine -v- the Diocese of Llandaff Board for Social Responsibility [2015]. On the face of it QOCS is straight forward. It provides Claimants in personal injury cases with full protection against liability... |
Is it Time for Medical Ethics Experts in Lack of Consent Cases? - Daniel Sokol, 12 King's Bench Walk Following the landmark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, I have been instructed on several cases of alleged failure to obtain valid consent. At present, consultants in the relevant specialty are asked to produce expert reports on the quality of the consent process... |
 Editorial: Court Reviews - Aidan Ellis, Temple Garden Chambers Whilst trying to find the temporary location of Edmonton County Court this month, I came across the Google reviews of this Court. Fourteen people had posted reviews, giving the Court an average rating of 1.3 out of 5. Given that the lowest possible rating is 1 out of 5 (which was the score awarded by... |
 The Abolition of Civil Liability in Employer's Liability Claims: An Early Indication of the Courts' Approach? - Jack Harding, 1 Chancery Lane Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work etc. Act 1974 in so far as it relates to civil liability. The section now provides that breach of a duty imposed by a statutory instrument containing health and safety regulations shall... |
 LM (A Child and Protected Party by his Father and Litigation Friend SM) v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB) - Richard Baker, 7BR The Claimant, a man now aged almost 19-years, alleged that he suffered severe brain damage because of breach of duty at the time of his delivery and birth. Liability issues were compromised in 2013 and judgment entered on the 24th June 2013 for damages to be assessed at 50% of the full value of the claim... |
 The Enterprise Bill: Payment of Insurance Claims - James Gibbons, Browne Jacobson LLP The Enterprise Bill ("the Bill") was published in September 2015 and contains provisions which, if enacted, would imply terms into all insurance contracts that require an insurer to pay sums due to insureds within a reasonable time. The changes are likely to have the most significant impact on first party loss policies. However... |
 Duty of Care: Hospital Not Liable for Non-Clinical Staff Giving Incorrect A&E Waiting Time - Tracy Sell-Peters & Andrew Cousins, DWF Andrew Cousins reviews this interesting decision limiting the expansion of duties placed on hospitals. In Darnley v Croydon Health Services NHS Trust, the High Court held that the Trust did not have a duty of care to provide accurate waiting times to patients attending A&E... |
Practice, Procedure and Fair Proceedings in the Coroner's Court: Wilson -v- Hm Senior Coroner for Birmingham and Solihull - Gordon Exall, Zenith Chambers In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] ewhc 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner's narrative verdict... |
 The Rise in Injury Litigation: Dodgy Claims Managers? - Thomas Crockett, 1 Chancery Lane An article in the Sunday Times a few weeks ago caught my eye. This revealed the aggressive tactics employed by predatory claims farmers to ensure that as many people as possible who have been involved in accidents bring claims for damages for personal injuries. Their tactics were reported as including... |
 Ms Veena Kamari Sharma v Cropz of London Limited - Gavin Redman, Express Solicitors Ms Sharma attended a London Beauty Salon to have a procedure known as threading. This involves a technique to remove unwanted hair. As a result of this treatment, she sustained an adverse reaction. Sarah Mawdsley, Partner of Express Solicitors acted on her behalf... |
 Is It Strictly Illegal? - Simon Anderson, Park Square Barristers It is with starry-eyed nostalgia that lawyers recall undergraduate law questions. I was recently presented with the following set of facts that resembled an examination paper on the topic of ex turpi causa non oritur action... |
 Damages Assessed on a Loss of Chance Basis: Interesting Court of Appeal Observations and a Round Up of the Relevant Cases - Gordon Exall, Zenith Chambers In Lillington -v- Ministry of Defence [2015] EWCA Civ 775 the Court of Appeal made some interesting observations in relation to damages for loss of chance of career promotion. The court was somewhat sceptical about the (joint) submissions that damages for future loss of earnings could not... |
 One Judge Can Summarily Assess The Costs Of Another Judge's Costs Order - Nick McDonnell, Just Costs Solicitors In Transformers And Rectifiers Ltd v Needs Ltd [2015] EWHC 1687 (TCC) (12 June 2015), Coulson J found that, in certain circumstances, a judge can summarily assess the costs arising out of a costs order made by a different judge... |
 What Is It About Driving? - Peter Harthan, 7 Harrington Street Two people are walking down a busy High Street. They are reasonably well adjusted, unexceptional members of society. Use your imagination to attach further details as you think appropriate. Anyway, one of these people, perhaps glimpsing something in a shop window or distracted by their mobile phone... |
 FOIL Responds to Court Fees Hike Consultation - Laurence Besemer, Forum of Insurance Lawyers Although inflation in the UK has been bumping along at below 3% for the last couple of years there is been one area where the picture has been dramatically different - court fees. In 2014, issue fees were increased very significantly, with increases of up to 80% on money claims for between... |
 The Ogden Tables -v- Smith & Manchester: A Court of Appeal Decision on Loss of Earnings - Gordon Exall, Zenith Chambers In Billett -v- Ministry of Defence [2015] EWCA Civ 773 the Court of Appeal overturned a decision that future loss of earnings should be determined by the "Ogden tables" approach and replaced it with the more traditional Smith -v- Manchester approach. Lord Justice Jackson sets out a detailed explanation of... |
| Summary of Recent Cases, October 2015 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, October 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Applications for relief from sanctions, one year on from Denton |
| An Update from North of the Border, Edited by David Stihler, Brodies LLP | |
 Scottish Costs Reforms: Fundamental Changes in Costs of Scottish Litigation (Update From North of the Border) - David Stihler, Brodies LLP One of the recommendations in Lord Gill's review of the Scottish Civil Courts, as commented upon in the last update from North of the Border, was for a review of the costs of litigation in Scotland to be undertaken. Sheriff Principal Taylor completed that review, producing a report making 85 recommendations... |
|
September 2015 Contents
 Welcome to the September 2015 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and the BSB. It provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL, and with the Bar Standards Board. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
|
|
| Personal Injury Articles, September 2015 | |
 Philip Cavell v Transport for London [2015] EWHC 2283 (QB) - Diarmuid Laffan, One Crown Office Row This recent interim judgment gives some interesting guidance as to the quality of explanation, and supportive evidence, that a Defendant will be expected to put forward when looking to resile from a pre-action admission of liability... |
 Collateral Damage - Liam Ryan, Ely Place Chambers The case of Levi and Levi v Bates, Leeds United, Football Club Limited and Yorkshire Radio Limited [2015] EWCA Civ 206 is an exciting legal development in that it provides a strong indication from the Court of Appeal that (circumstances and facts permitting), the Courts are entitled to find that an individual who causes another psychiatric injury through an untargeted act of harassment can be liable for... |
| Secondary Victims: Are the Newly Restrictive Rules From the Court of Appeal Now Being Tightened Even Further? - Kirsten Wall, Leigh Day The long awaited Court of Appeal case of Ronayne - v- Liverpool Women's Hospital NHS Foundation Trust has, seemingly, made the restrictions on secondary victim claims set out by the House of Lords in Alcock - v- Chief Constable of South Yorkshire Police even tighter... |
 Editorial: The Boundaries of the Fast Track - Aidan Ellis, Temple Garden Chambers The dividing line between the small claims track and the fast track has obvious significance because of the markedly different costs regimes which apply. As awards for general damages are pushed upwards, due to inflation and due to the 10% uplift now often applicable pursuant to Simmons v Castle, one side effect is that more cases are driven into the fast track. In practice, where does the dividing line now fall? |
 Haven't We Dealt With All the Portal Issues Now? - Sarah Robson, Alpha Court Chambers Many MOJ Portal issues have been resolved, and if you practice in this area of law you probably know the main 'ins and outs' of the Portal. We know it is a tightly bound, stand-alone code, and we know the Protocol is 'King', unlike most other protocols. We know you cannot... |
 Sherlock Holmes in the Court of Appeal - Roderick Abbott, 1 Chancery Lane "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" The Sign of Four begins with a bored Holmes mired in cocaine addiction, much to the disquiet of Dr Watson. A young woman appears. She has a mystery that needs solving... |
 Norovirus Claims: Are They Worth Pursuing? - Tina Patel, Leigh Day Norovirus, commonly known as the winter vomiting bug, is the most common stomach bug in the UK. It is highly contagious and transmitted by consumption of contaminated food or water, contact with contaminated surfaces or infected individuals... |
 Are There Discernable Trends in the RTA Claims Sector? - Ian Miller, 1 Chancery Lane How effective have recent reforms been in reducing the number of road traffic injury claims and their associated costs? The Institute and Faculty of Actuaries reports there has been a slight rise in claims by 1.7% between 2013 and 2014 which is less than suggested by the portal where claims notifications are back to... |
 Breach of Statutory Duty After the Enterprise and Regulatory Reform Act 2013, A Scottish Decision: Daleks Are Not That Dangerous After All - Gordon Exall, Zenith Chambers The precise impact of the ERRA upon liability is still very much open to debate. Some guidance may be found in the Scottish case of Gilchrist -v- Asda Stores Ltd [2015] CSOH 17. A judgment of Lady Stacey where judgment was given on the 17th June 2015... |
 Damage to Chattels: No Room For Sentiment - Peter Harthan, 7 Harrington Street The Claimant had been involved in quite a nasty crushing accident at work causing injury to the hand and fingers. Fortunately the main trauma was sustained on the ring finger and the Claimant's wedding ring prevented what would otherwise have been a complete severance of the finger... |
 When Your Spine Can Hold You Back: Spinal Infections - Bruno Gil & Raquel Siganporia, Bolt Burden Kemp Over the last few years there have been several successful and highly-valued claims where patients have sued their doctors for failing to diagnose infections of the spine or failing to act promptly... |
 Costs Budgeting: Are Incurred Costs Untouchable? - Ian Miller, 1 Chancery Lane How do you get around costs budgeting? One might have thought by incurring considerable costs before the CCMC: Practice direction 3E 7.4 states that the court may not approve costs incurred before the date of a budget. In CIP Properties Ltd v Galliford Try Infrastructure [2015] EWHC 481 Coulson J came up with an order which would... |
 Loss of Earnings for a Child Badly Injured at Birth: Another Example From the High Court - Gordon Exall, Zenith Chambers In HS -v- Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1367 (QB) Mr Justice William Davis considered the claim for loss of earnings in a case where a claimant suffered a catastrophic head injury at birth. |
 Telematics - Peter Wilson, Park Square Barristers Many vehicles are now fitted with tracking devices. Such devices allow the owner to locate the vehicle if it goes missing. In the past tracking devices were most often fitted to high value vehicles. Increasingly, however, tracking devices are being fitted to other vehicles such as fleet cars and hire cars. Some people agree to allow their motor insurer to fit a tracking device to their car so that... |
 Ignore Your Costs Budget at Your Peril! - Sharon Smith, John M Hayes We suspect that there are not many who truly relish the whole notion of costs budgeting? But please fight the urge, once you have agreed your budget or had the court approve it, to bury it away in a dark cupboard and hope it will never see the light of day again! |
Future Loss of Earnings at £1,446.431: A High Court Case Examined - Gordon Exall, Zenith Chambers Continuing with the practice of looking at judicial decisions in relation to loss of earnings we look at Siegel -v- Pummell [2014] EWHC 4309 (QB) where Mr Justice Wilkie considered a claim for loss of earnings where a high achieving IT Consultant... |
| Summary of Recent Cases, September 2015 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, September 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Costs on the Small Claims Track: Unreasonable Behaviour |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Assessing Psychological Trauma: Current Issues in 2015 - Dr Richard Cosway & Dr Hugh Koch Guidance given for the instruction of experts to give evidence in civil claims clearly endorse the overriding duty of experts to help the court obtain evidence, which is independent, reasonable and fair. This is regardless of the pressures of litigation. To achieve this when assessing psychological trauma, several key factors require consideration in every case... |
|
| An Update from North of the Border, Edited by David Stihler, Brodies LLP | |
 Scottish Civil Jury Trials to Be Allowed at the Sheriff Court Level: A Run Through of Recent Scottish Jury Awards - Lorne Todd, Brodies LLP The All Scotland Personal Injury Court will open its doors in Edinburgh on 22 September 2015, dealing with many cases with a value up to £100,000 which would previously have been dealt with in the Court of Session. It brings with it the right to a Civil Jury Trial for the first time in a Sheriff Court and this article provides a quick run through of recent jury awards in Scotland... |
An Update from North of the Border: Scottish Court Reforms To Take Effect From 22nd September - David Stihler, Brodies LLP The Courts Reform (Scotland) Act 2014, referred to by Lord Gill as "the single most important piece of legislation in the field of civil justice for over a century", is designed to maximise the efficiency and the output of the Scottish courts. Many of its key provisions will take effect from 22nd September 2015... |
| Book Reviews | |
 Book Review: 'Disciplinary and Regulatory Proceedings' by Gregory Treverton-Jones QC, Alison Foster QC, Saima Hanif Review by Aidan Ellis, Temple Garden Chambers. |
 Book Review: 'Clinical Negligence' Edited by Michael Powers QC & Anthony Barton (Bloomsbury Professional, Fifth Edition, 2015) Review by Tim Kevan, co-editor, PIBULJ.COM. |
August 2015 Contents
 Welcome to the August 2015 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and the BSB. It provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL, and with the Bar Standards Board. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz Feedback Form CPD Information
|
|
| Personal Injury Articles | |
 Two Lessons to be Learnt - Jennifer Haren, Weightmans LLP So far in 2015 we have seen two decisions which are not only likely to leave a lasting mark on the profession but also a judiciary in no doubt expecting lessons to be learnt. The first was Proctor v Raleys Solicitors [2015] EWCA Civ 400 where the Court of Appeal rejected submissions that financial pressures require solicitors to... |
 Editorial: Consultation on Court Closures - Aidan Ellis, Temple Garden Chambers The Ministry of Justice is currently consulting on proposals to close around 90 Courts, including 19 County Courts and other Combined Courts. Following the closure of around 140 Courts in 2010, there are currently 460 operational Courts and Tribunals. Thus roughly one in every five courts could be closed, with a loss of... |
 Curbing the Excesses: Post Stevens Case Law Round Up - Gary Herring, Horwich Farrelly Solicitors Almost seven months on from the decision of the Court of Appeal in Stevens v Equity[2015] EWCA Civ 93, and County Court lists remain busy with credit hire disposals requiring the court's determination of the basic hire rate. |
Coventry v Lawrence: Old Style Costs Regime Survives Human Rights Challenge - Robert Weir QC, Devereux Chambers On 23 July 2014, in a judgment in Coventry v Lawrence [2014] UKSC 46 also covering the issue of a landlord's liability for nuisance, Lord Neuberger endorsed the arguability of the defendant's case that its liability to pay the successful party's success fee and ATE premium breached the defendant's Convention rights under article 6 (the right to a fair trial) and Article 1 of the First Protocol, known as... |
 Erra in Law - Richard Johnson, Browne Jacobson LLP Following the introduction of Enterprise and Regulatory Reform Act 2013 "ERRA" the new landscape for personal claims post 1st of October 2013 is that such claims are, save for limited exceptions, dependent upon whether the claimant can prove negligence by proving breach of duty and foreseeable risk of injury... |
Coventry v Lawrence: Supreme Court Rules That Conditional Fee Agreements Don't Breach Human Rights - Frances Coulson, Moon Beever Solicitors On 22 July the Supreme Court gave judgment in Coventry v Lawrence. This simple neighbour nuisance case had the misfortune to become a test case for the argument that the recoverability of adverse costs premiums and success fees on CFAs from the opponent amount to a breach of that paying party's Article 6 ECHR (and/or article 1 of the first protocol to the Convention) human rights... |
 Stress at Work: a Matter of History - Mark Fowles, Browne Jacobson LLP Over 10 years ago now the Court of Appeal gathered four cases to be heard together with the express intention of providing guidance as to the handling of stress at work cases claims. The fact that they recognised the need was important. It amounted to an acceptance that there was something special about this sort of claim that distinguished it from the ordinary run of employer liability claims. Ten years on despite many initiatives and improved workplace practices... |
Preparing Expert Evidence - Geoffrey Simpson-Scott, Colemans-ctts In Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB), Green J helpfully reiterated a series of principles for the proper assessment of expert evidence on breach of duty at trial. These principles are not new; as he set them out previously in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB)... |
 Moreno v Motor Insurers' Bureau - Matthew Channon High Court of Justice Queens Bench Division, Mr Justice Gilbart, 17 April 2015, 2015 EWHC 1002 (QB). The claimant was a 25 year old who had sustained serious injuries whilst on holiday in Greece. She was standing on the verge of a road when the car left the road and struck her, causing severe injuries to her legs, requiring amputation. The driver of the vehicle, who was at fault, was uninsured... |
Car vs Cyclist: Apportionment of Liabilty - Sophie Mortimer, 1 Chancery Lane Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant... |
| A Summary of the Key Changes to Part 36 - Brian Booth, John M Hayes As of 6 April 2015 the Provisions of Part 36 underwent a significant update. This summary attempts to provide a run-down of the key changes from a costs practitioner's perspective... |
 Expert Evidence in Road Traffic Cases - Ian Miller, 1 Chancery Lane Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority's breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461... |
| High Costs Cases; Are You Making the Most Out of the Ccfs Scheme? - Leanne Davies, John M Hayes Once it comes to light that a care matter is going to exceed costs of £25,000, it is time to register it as High Costs. Previously, the only option would be to prepare a fully costed hourly rates case plan which would need updating and negotiating with the Legal Aid Agency on a regular basis. Now, it is important to consider whether one of the CCFS (previously Events) case plan models would be... |
Court of Appeal Overturns 'Michelin Man' Pay-Out Decision - Charles Bagot, Hardwicke It had been 10 years since a secondary victim claim had reached the Court of Appeal when the important case of Taylor v A.Novo(UK) Ltd [2014] QB 150 was decided, in March 2013. By contrast, the last six months have seen a series of key decisions illustrating the approach first-instance Courts will take in the light of Taylor, namely... |
 Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665 - Matthew Chapman, 1 Chancery Lane On 3 July 2015 the Court of Appeal handed down judgment in Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665: a fatal road traffic accident and personal injury claim arising out of an "off-package" excursion contract performed in Egypt. In largely dismissing the Defendant's appeal against the Order of... |
Loss of Earnings in the Case of a Child Injured at Birth: An Example From the High Court - Gordon Exall, Zenith Chambers It is always worthwhile looking at the way a trial judge has awarded damages for loss of earnings. This assists greatly in advising clients as to the likely approach at trial. In Robshaw -v- United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) Mr Justice Foskett awarded damages for loss of earnings to a 12 year old boy who had been seriously injured at birth. |
 Can the Court Consider Hourly Rates in the Budgeting Process? - Mark Banyard, John M Hayes Earlier this year, Warby J gave judgement in the case of Yeo v Times Newspapers Ltd [2015] EWHC 209 (QB). This was a decision primarily on whether the Claimant's plea of malice should be struck out but, because the application for strike-out was made whilst the budgeting process remained live, it afforded an opportunity for Warby J to provide some guidance as to the latter in a reported authority... |
Secondary Victims: a Race Between the Claimant and the Ambulance? - Brenna Conroy, Hardwicke It is hard to escape the notion that the rise in the number of secondary victim claims in recent years owes its success to the amorphous concept of 'proximity'. The test of proximity itself is well established: a secondary victim claimant can only establish a claim in law as a result of witnessing an event or its immediate aftermath. Establishing proximity does not pose much of a problem if the claimant has... |
 Contribution, Limitation and the Athens Convention - Ian Miller, 1 Chancery Lane In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961... |
Fatal Accidents and Clinical Negligence: Recent Developments and Timely Warnings - Gordon Exall, Zenith Chambers Fatal accident litigation can give rise to very specific problems in the context of clinical negligence. All fatal accidents always throw up their own unique problems. Recent cases have demonstrated a number of particular areas of concern for all practitioners, but particularly those instructed where medical negligence has caused, or hastened, death. |
 Scrutiny of Medical Evidence & Physiotherapy Charges in Low-Value PI Cases - Thomas Crockett, 1 Chancery Lane I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist... |
Summary of Recent Cases, August 2015 Here is a summary of the recent notable court cases over the past month. |
| PI Practitioner, August 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: withdrawal of an admission made under CPR Pt 14 |
|
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
