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February 2015 Contents
 Welcome to the February 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
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| Personal Injury Articles | |
 Investigating Liability And Causation - Andrew Mckie, Clerksroom Chapter Four from the book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie. In 2001, there were 204,839 road traffic accidents in England and 9,499 road traffic accidents in Wales. This chapter aims to look at the various methods of investigating liability in road traffic accidents. |
 Jeyakanthan Rengasamy v Homebase Ltd (Lawtel, 23 January 2015, Knowles J) - Michele De Gregorio, Crown Office Chambers Appeal against case management decision refusing permission for parties' engineering experts to give oral evidence at trial. |
 Downing v Peterborough and Stamford Hospitals NHS Foundation Trust: Damages and Costs - Harry Trusted, Outer Temple Chambers This was case was heard by Sir David Eady at the High Court in London on October 21 - 24 2014. On December 2nd 2014, the judge heard submissions on various consequential matters and the Approved Judgment (to be cited as [2014] EWHC 4216 was... |
 Blankley v Central Manchester NHS [2015] EWCA Civ 18: A Narrow Issue? - Matthew Smith, Kings Chambers The claimant was very seriously injured by the defendant's clinical negligence. Her capacity to litigate fluctuated. When she had capacity she agreed a CFA with her solicitors. She then lost capacity. On accepted authority, that loss of capacity immediately... |
 Quantum: General Damages, Common Heads of Loss in RTA Claims (Non-Vehicle Related Damages) and Avoiding Negligence Claims - Andrew Mckie, Clerksroom Chapter Five from the book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie. With the introduction of the Low Value Portal, it has now become more important than ever for all fee earners to be able to value RTA claims up to and including £25,000 (the Portal Limit). This Chapter is designed to provide a straightforward guide to the starting points for valuing low to mid-range RTA claims. |
 Limitation in Contribution Claims - Andrew Roy, 12 Kings Bench Walk Chief Constable of Hampshire v Southampton City Council [2014] EWCA Civ 1541. Court of Appeal Jackson, Patten and Lewison LJJ This case determined a short but important point as to when the limitation period runs (and therefore expires) in respect of... |
 Editorial: Online Dispute Resolution - Aidan Ellis, Temple Garden Chambers In February 2015, the working party of the Civil Justice Council produced a report on Online Dispute Resolution ("ODR"). Their recommendation is to create an online court, instead of a physical court building, which will "hear" all civil... |
 Clause 561? Fundamentally Incompatible, I Say (and By The Way, the Supreme Court Agrees) - Steven Akerman, Brian Barr Solicitors The full effect of the Jackson Reforms has yet to be fully realised in the personal injury sector. None the less, personal injury lawyers have to come to terms with another seismic change in the personal injury landscape. I refer to the provision in the... |
 Investigating Indemnity, The 1988 Road Traffic Act and Vicarious Liability - Andrew Mckie, Clerksroom Chapter Six from the book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie. Indemnity is an important area of law for practitioners dealing with road traffic claims. Whilst this is an area of law often more relevant to those undertaking allegations of fraud work, it can also arise in the context of more straightforward road traffic claims. |
 Exploring the Employer/Employee Relationship - Geoff Owen, Parabis Group A number of recent cases have explored the relationship between two parties to determine whether or not they were employer and employee. The test is usually relatively straightforward: was there in place a contract of service (employee) or a... |
 A Mistake on Mistake? - Paul Stanton In Draper v Newport (2014) the question arose as to whether or not common law doctrines, and in this case specifically the doctrine of mistake, have any application in the MoJ protocol for low value personal injury claims (i.e.the Portal process)... |
 Personal Injury Case Review Scotland 2014: Part 1 - Douglas McGregor, Brodies LLP The changes to be introduced by the Courts Reform (Scotland) Act 2014 have been making many of the personal injury headlines this year in Scotland and no doubt the reforms will also be the focus of attention over the next 12 months too... |
 Allergies, Chemical Sensitivity and Susceptibility - Alan Care, Thomson Snell & Passmore The Bradford Hill criteria remain the starting point for any consideration of causation, be it legal or medical and scientific. It has long been said that law and medical science do not make happy bed fellows. How true this is. See the discussion in the Supreme Court's... |
 How to Avoid Professional Negligence in Personal Injury Work: A New Era of Meaningful Performance & Risk Management - Lesley Graves, Citadel Law Almost two years since the introduction of LASPO, many claimant personal injury firms are exposing themselves to the considerable threat of professional negligence claims and rising professional indemnity insurance (PII) premiums... |
 Injuring the Already Injured - Dr Jock Mackenzie, Anthony Gold Solicitors In Christine Reaney v (1) University Hospital of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation Trust [2014] EWHC 3016 (QB), Foskett J. had to consider the extent that the consequences and their sequelae of admitted negligence had... |
 Measurable Goals - Bill Braithwaite QC, Head of Exchange Chambers Following on from my article, talking about rehabilitation, measurable goals are becoming increasingly important. I've had a couple of experiences recently which suggest to me that we lawyers may not do enough to make sure the rehab unit sets... |
 Loss of Earnings in a Case Where the Claimant Was a Child When Injured - Gordon Exall, Zenith Chambers A claim made for loss of earnings when the claimant is a child is always problematic. There were several issues considered by Mr Justice Kenneth Parker in Tate -v- Ryder Holdings [2014] EWHC 4256(QB). Here we look at how the court approached... |
 Exploding the Myth of 'Compensation Culture' - John Spencer, Spencers Solicitors (President of the Association of Personal Injury Lawyers) The term 'compensation culture' has been a favourite media buzzword in recent years with both journalists and politicians quick to point to a rise in spurious claims. It is my belief that an analysis of the facts show this phrase not only to be a misleading one but... |
 Railing Against Expanding Highway Authorities' Duties of Care - Andrew Spencer, 1 Chancery Lane There is a very useful discussion in the recent case of Foulds v Devon County Council about the nature of a highway authority's common law duty to road users. |
 The Global Scope of Employer's Liability - Jack Harding, 1 Chancery Lane It is trite law that an employer's duty to its employees is non-delegable. The duty is to take reasonable care to see that the employee is not exposed to unnecessary risk. In the vast majority of cases, the scope and content of this duty will... |
 Rehab Experts and Catastrophic Brain Injury - Bill Braithwaite QC, Head of Exchange Chambers I had a consultation recently with a rehabilitation expert, which made me wonder whether we should make more use of them following catastrophic brain injury. Once out of acute care, there are so many choices to be made, and the... |
 An Analysis of Serious Psychological Injury Following UK Military Service - Rushmi Sethi An analysis of serious psychological injury following UK military service at work with reference to case law, published journal articles, and medical evidence. Exposure to intense combat is among the most commonly associated traumas with PTSD... |
 Summary of Recent Cases, February 2015 Here is a summary of the recent notable court cases over the past month. |
 PI Practitioner, February 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: A number of liability decisions in clinical negligence actions were reported in January 2015 |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 RTAs Involving Women in Pregnancy - Ms Nicole Hampton, Chartered Psychologist, Hugh Koch Associates LLP & Mr David Bird, Chartered Psychologist, Hugh Koch Associates LLP On assessing women who were pregnant at the time of their road traffic accident, on face value, their symptoms can often seem disproportionate to the accident. However, in such cases, these individuals are not just worried about their own mortality, they are also worried about their unborn child. Even a minor accident can cause extreme anxiety due to, for example, seatbelt injury which, even at 10 MPH, is a much bigger issue for pregnant women... |
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January 2015 Contents
 Welcome to the January 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
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| Personal Injury Articles | |
 Public Liability and Highways Claims Post-Jackson: The Portals - Andrew Mckie, Clerksroom Chapter Three from the book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie. The public liability (PL) portals came into effect on 31 July 2013. Any book looking at slipping and tripping claims post-Jackson, would not be... |
 Public Liability and Highways Claims Post-Jackson: Part 36 and Litigation Tactics - Andrew Mckie, Clerksroom Chapter Two from the book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie. It is clear that in relation to post-Jackson, post 31 July 2013 highways and public liability cases, the incentives for defendants and insurers to settle... |
 Editorial: The Luxury of Attending Trial - Aidan Ellis, Temple Garden Chambers At a number of costs and case management conferences recently, I have noticed District Judge's refusing to budget for a solicitor to attend trial on the basis that having a solicitor attend trial is a "luxury". I disagree... |
 Not So Cut and Dry When It Comes to Hairdressing Injuries - Nicola Perry, Bartletts Solicitors Earlier this month, Nia Griffith MP made a call in a parliamentary debate for hairdressers to be subject to a compulsory state register. Whilst there has been no indication from the government that this suggestion will be implemented it does highlight the difficulty with... |
 Advising on a Secondary Victim Claim? December 2014 Produced a Trio of New Cases Considered by Charles Bagot of Hardwicke If you are struggling to pin down the relevant principles when advising in a secondary victim case this should be no surprise. As Lord Hoffmann observed: "It seems to me that in this area of the law, the search for principle was called off in Alcock v. Chief Constable... |
 QOCS: Testing Boundaries - Jamie Carpenter, Hailsham Chambers In a system of civil litigation in which the general rule is "loser pays", qualified one-way costs shifting (QOCS) is one of the more radical of the Jackson reforms. Although the English legal system is used to restrictions on costs recovery in publicly funded litigation... |
 Without A Safety Net: Litigating Employers' Liability Claims after the Enterprise Act - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk Section 69 of the Enterprise and Regulatory Reform Act 2013 repealed section 47 of the Health and Safety at Work, etc. Act 1974. The latter accorded a civil right of action for a breach of the regulations created under the HSWA 1974 except so far as... |
 Extensions of Time to File Notices of Appeal and Relief From Sanctions - Ruwena Khan, Zenith Chambers R (on the application of DINJAN HYSAJ) v Secretary of State for The Home Department: Fathollahipour v Aliabadibenisi: May v Robsinson [2014] EWCA Civ 1633. CPR r.3.9 rears its growling head again...but a more robust approach, nevertheless, should... |
 Loss of Earnings, Loss of "Perks" and Chances of Promotion: A High Court Example - Gordon Exall, Zenith Chambers The case of Downing -v- Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB) provides an interesting example of the court assessing damages in a case where liability was agreed. Here we look at the judge's approach to... |
 Courts Reform (Scotland) Act 2014: Big Changes Ahead in Personal Injury Litigation in Scotland - Douglas McGregor, Brodies LLP On 10th November 2014, just over five years after the publication of Lord Gill's Scottish Civil Courts Review, the Courts Reform (Scotland) Act 2014 received Royal Assent. As a result, the coming year will see steps taken which will radically alter... |
 A Prediction for 2015: Costs Budgeting is Doomed - Ian Miller, 1 Chancery Lane With the new year come predictions as to what will happen in 2015. Tom Standage of the Economist predicts that our smart phones will become smarter with the use of anticipatory or predictive intelligence - our phones may suggest we leave... |
 Application of Procedural Rules and Litigants-in-Person - Thomas Crockett, 1 Chancery Lane There can be little doubt that modern litigation involves the increased presence of people representing themselves in court. Particularly amongst some kindlier judges (in all courts) there could be said frequently to be a culture of... |
 Applications for Payments on Account of Costs - Matthew Hoe, Jaggards & Taylor Rose Law An application for a payment on account of costs is the jet pump of cashflow. Beware of it reversing the flow. More claimants are now applying for payments on account of costs in the early stages of costs negotiations or detailed assessment proceedings... |
 Personal Injury, Negligence and COP Lawyers Need to Understand Special Educational Needs (SEN) - Ed Duff, Boyes Turner On 1st September 2014, the most significant change in special educational needs (SEN) law for 30 years took effect due to the Children and Families Act 2014. This has increased the scope of support for children and young people. It means that PI... |
 Whither (Withering?) Success Fees - Alan Bacon, BTMK Solicitors LLP Should we be deducting success fees from our client's damages in successful personal injury and clinical negligence claims? After some initial hesitation my firm have decided not to do so and our Conditional Fee Agreements (CFAs) with... |
 Prosecution of PI Fraud - Thomas Crockett, 1 Chancery Lane Any regular reader will be aware that I have an interest in fraudulent personal injury claims, being involved as I am in numerous cases where a vast range of fraud is alleged by Defendant parties... |
 Experts and Mental Capacity - Bill Braithwaite QC, Head of Exchange Chambers Still on the subject of experts, I read two reports about a client's mental capacity recently, which emphasised to me the need for skilled legal management of evidential problems... |
 Rome II and the Law of the Tort - Matthew Chapman, 1 Chancery Lane Those with an interest in the Rome II Regulation (there must be someone else out there) may already be familiar with the recent decision of Slade J in Winrow v Hemphill & Anor. [2014] EWHC 3164 (QB). This short piece focuses on one aspect of the judgment... |
 Back to Basics in Occupiers Liability - Flora Wood, Ashfords Solicitors The recent case of Burtcher v Southend-on-Sea BC helps to identify those cases where a system of inspection and risk assessments is crucial to a successful defence, and those where it makes no difference because the hazard is... |
 European Group for Legal Expertise - Barry Turner, University of Lincoln On the 9th July 2014 a project was undertaken by members of the European Judiciary, Lawyers, Expert Witnesses and Legal Academics to reach a European consensus on the best practices in civil judicial expertise and to draft a European Guide to... |
 It's All Down to Evidence - Bill Braithwaite QC, Head of Exchange Chambers I know there's an element of repetition about my blogs, but I think that's because some points crop up again and again, and seem to me to be fundamentally important. Sometimes, when I read reports of cases which have been decided by the courts, I'm amazed that... |
Summary of Recent Cases, January 2015 Here is a summary of the recent notable court cases over the past month. |
| PI Practitioner, January 2015 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: A 25% Deduction From Child Settlement Awards |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Untangling Complex Presentations: Physical Conditions Which 'Mimic' Psychological Symptoms - Dr Jon Willows & Josh Williams The accurate and reliable assessment of the breadth, severity and duration of psychological symptoms is central to psychological medico-legal enquiry. Within this context, the attribution of psychological symptoms in relation to a given 'index event' (for example a road traffic accident or an injury at work) is of central importance... |
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December 2014 Contents
 Welcome to the December 2014 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
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| Personal Injury Articles | |
 FREE BOOK CHAPTER: Future Developments in RTA Claims, Reducing Fraud and Costs - Andrew Mckie, Clerksroom Here is another free chapter from the new book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie, A clear but comprehensive guide to road traffic accident personal injury claims. Covers issues in relation to RTA claims dealing with such issues as the portal, fixed costs, liability, indemnity, vicarious liability, causation, litigation tactics, investigating quantum, vehicle related damages and head of special damages, commonly found in RTA cases and in particular focuses on the day-to-day issues in practice, one encounters with such cases. |
 For the Greater Good? Summary Dismissal, Psychiatric Injury and Remoteness - Liam Ryan, Ely Place Chambers Exploring the impact of the Court of Appeals decision in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 and how Claimants in stress at work claims can bring claims for psychiatric injury and consequential loss occasioned through a single incident of stress. |
 The Importance of Evidence of Local Standards When Bringing a Holiday Claim - Joe Smith, Bartletts Solicitors A recent Court of Appeal case has emphasised the importance of adducing evidence of local standards when bringing a slipping claim under the Package Travel, Package Holiday and Package Tours Regulations 1992 (the 1992 Regulations)... |
 Butcher v Southend-on-Sea Borough Council [2014] EWCA Civ 1556 - Jack Nicholls & Mike Blitz, 5 Pump Court In Butcher v Southend-on-Sea Borough Council [2014] EWCA Civ 1556, the Court of Appeal rejected any attempt to treat the various factors established as relevant to occupier's liability as a checklist. The decision serves as a reminder that weight is just as important as... |
 Editorial: Promptness and Applications to Set Aside Default Judgment - Aidan Ellis, Temple Garden Chambers As is well known, when the Defendant invites the Court to exercise its discretion to set aside default judgment pursuant to CPR 13.3, the Court must consider whether the application was made promptly. But what does promptness add to the Court's analysis? |
The Claimant's Burden: The Decision of the Court of Appeal in Lougheed v On The Beach Limited [2014] EWCA Civ 1538 - Sarah Prager, 1 Chancery Lane Sarah Prager considers the recent decision of the Court of Appeal in Lougheed v On the Beach Limited [2014] EWCA Civ 1538 relating to the necessity for evidence of local standards in holiday claims... |
 Court of Appeal Upholds Finding of No Residual Earning Capacity - Gordon Exall, Zenith Chambers It is rare for the Court of Appeal to consider matters relating to loss of earnings. In the judgment today in Ali -v- Caton and the MIB [2014] EWCA Civ 1313 the Court of Appeal upheld a finding of the trial judge that the claimant had no residual earning capacity. |
 Claimant PI Firms Urged to Keep It Real About The WIP - David Johnston, PI-Solutions Many claimant personal injury (PI) law firms, particularly smaller firms or departments, are putting a much higher value on their work on progress (WIP) than it's actually worth and, in some cases, it's proving to be their downfall warns David Johnstone... |
 Heneghan v Manchester Dry Docks Ltd & Others - Nick Pargeter, BLM In a successful BLM asbestos-related lung cancer case, the High Court has held that where the claimant has been exposed to asbestos in breach of duty by more than one defendant, and no defendant is responsible for more than half the total cumulative exposure... |
 Compensating an Injured Foetus: The CA's Decision - Ian Miller, 1 Chancery Lane Can a child make a claim to the Criminal Injuries Compensation Authority in circumstances where it has been injured by its mother's excessive alcohol consumption during pregnancy? What duty of care is owed by a mother to her unborn child? |
 Loss of Earnings: Proving That the Injuries Caused the Losses - Gordon Exall, Zenith Chambers The burden of proof is on the claimant in proving loss of earnings. This applies as much to proving causation as to the duration and amount of the loss. Here we look at two recent cases which are very different but highlight the problems there can be with causation. |
 Neutral Facilitation - Bill Braithwaite QC, Head of Exchange Chambers I've been writing for some time about my scheme of neutral facilitation; the parties appoint a neutral facilitator at the outset of the claim, or during its progress, and that person, who needs to be a specialist in the type of litigation being conducted... |
 Shooting Admiral Byng - Ian Miller, 1 Chancery Lane Although Hildyard J. made reference to Admiral Byng in his judgment in the case of Caliendo v Mishcon de Reya [2014] EWHC 3414 he was not prepared metaphorically to shoot the Claimant's solicitors, DLA Piper LLP, to encourage the rest of us... |
 A Review of the Case of Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 - Rushmi Sethi This is an interesting claimant personal injury international law case because the Court of Appeal clarified the law on the issue of which expert evidence the court should order fell to be determined by reference to English law, the law of forum, rather than French law, the applicable law. |
 Platinum Salts Sensitisation/Allergy: No Injury as the Court Follows Pleural Plaques - Alan Care, Thomson Snell & Passmore The medical profession particularly allergists and immunologists may well be surprised by this recent High Court judgment as Jay J has apparently swept aside medical science or at least an appreciation of allergy... |
 Whiplash and Fraudulent Claims - Ian Miller, 1 Chancery Lane The justice secretary spoke to the Association of British Insurers recently, telling them about the new panels of medical experts in whiplash claims, reported The Times. The government's plans for such panels have long been known about but... |
 No Liability for Development of Sensitivity to Platinum: Greenway -v- Johnson Matthey PLC - Gordon Exall, Zenith Chambers In Greenway -v- Johnson Matthey PLC [2014] EWHC 3957 (QB) Mr Justice Jay decided that there was no claim in law for claimants whose exposure to substances at work led to their developing sensitivity to platinum... |
 Negotiation in Catastrophic Claims - Bill Braithwaite QC, Head of Exchange Chambers Negotiation in catastrophic injury claims is so interesting; everyone has different styles. Some work for me, and some don't. I had two settlement meetings recently, close together, which demonstrated the two extremes. |
| Summary of Recent Cases, December 2014 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, December 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The Supreme Court's judgment in HRH Prince Abdulaziz Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Detection of Deliberate Deception in Medico-Legal Assessment - Dr Karen Addy Consultant Clinical Psychologist / Neuropsychologist A key part of the medico legal process involves the expert's assessment of if the individual presented before them is telling a true and accurate account of their difficulties. Some people say that gaze aversion is a sign of lying, others that fidgety feet or hands are the key indicators. Still others believe that analysis of voice stress or body posture provides benchmarks. Research has tested all of these indicators and found them only weakly associated with deception. |
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| Expert Witness Articles | |
 The Bond Solon Annual Expert Witness Survey - Mark Solon, Bond Solon Expert witnesses say they are being put under pressure to change their reports, according to the latest Bond Solon Annual Expert Witness Survey. In a survey of 186 expert witnesses, 55 respondents said they had been asked to, or felt pressurised to, alter a report, in a way that damaged their impartiality. Witnesses' experiences ranged from being asked to remove sections of reports which were seen as damaging to the client's case to being asked to re-write in their favour. Other experts said some solicitors had even refused to... |
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November 2014 Contents
 Welcome to the November 2014 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
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| Personal Injury Articles | |
| FREE CHAPTER: 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie A free chapter from the new book 'RTA Personal Injury Claims Post Jackson: A Practical Guide' by Andrew Mckie, A clear but comprehensive guide to road traffic accident personal injury claims. Covers issues in relation to RTA claims dealing with such issues as the portal, fixed costs, liability, indemnity, vicarious liability, causation, litigation tactics, investigating quantum, vehicle related damages and head of special damages, commonly found in RTA cases and in particular focuses on the day-to-day issues in practice, one encounters with such cases. |
 Editorial: Oral Applications for Relief from Sanctions - Aidan Ellis, Temple Garden Chambers Despite the best intentions of the Court of Appeal, the repercussions of Mitchell, Denton and the redrafting of CPR 3.9 continue to dominate recent High Court decisions. One interesting recent skirmish revolved around the procedural requirements for an application for relief from sanctions. |
 A Fundamentally Wrong Decision - Steven Akerman, Brian Barr Solicitors One of the reasons that drove the Jackson Reforms was the alleged rampant fraud in the personal injury sector. Accident 'victims' (as some would have you believe) saw whiplash claims as easy money. As there is no definitive test to prove that a whiplash injury has been sustained... |
 McDaniel & Co v Clarke (QBD Mr Justice Hickinbottom, 15th October 2014) - Rupert Cohen, Hardwicke The judgment of Mr Justice Hickinbottom provided a salutary reminder to solicitors of the need to ensure that in their initial discussion with a potential client they advise and explore with the client other sources of funding litigation... |
 Williams & Mesothelioma Recent Cases - Alan Care, Thomson Snell & Passmore Each case must be judged on its own facts. But the judgment in Williams v Birmingham University has clearly taken on a life of its own and been applied, given its facts, perhaps too readily by our courts. A review of recent mesothelioma judgments [since 2007] is examined and discussed... |
 Injured Aeroplane Passengers and the Montreal Convention - Aidan Ellis, Temple Garden Chambers With a number of claims management companies promoting the possibility of claiming in negligence against airlines for injuries sustained inflight, it is worth sketching out some of the boundaries limiting claims for such injuries as laid down by the Convention for the Unification of... |
 Mesothelioma and the New Era of Low Dose Asbestos - Alan Care, Thomson Snell & Passmore This is the era of low dose mesothelioma claims. Some higher dose worker claims will continue to arise but the number of claimants will continue to fall over the next couple of years and are reducing as I write this article. One simple fact is the aging exposed population of heavily exposed workers... |
Mother of Fatal Car Crash Victim Receives Large 'Secondary Victim' Payout - Tim Driver, Michael Lewin Solicitors The limitations placed on secondary victims hoping to claim compensation were put to the test earlier this year when Martha Young, a child development officer, was awarded over £230,000.00 in compensation after happening across the scene of the car accident which killed her son... |
 Coventry and the Incompatability of Jackson/LASPO - Steven Akerman, Brian Barr Solicitors There were many fears permeating the legal profession in the run up to the implementation of the Jackson reforms. Hence, the race to sign up as many clients under the old regime - with recoverable success fees and ATE premiums - before J-day. After all, there was no... |
 Developments in Fundamental Dishonesty - Martyn Griffiths, Hardwicke Personal injury practitioners will be aware of the significance of a finding of fundamental dishonesty in the context of Qualified One-Way Costs Shifting ("QoCs") following the implementation of the Jackson reforms... |
 Part 36 and PI Claims: Truth and Myths Part II - John-Paul Swoboda, 12 King's Bench Walk Part 36 was brought into existence to encourage settlement between the parties. However it can sometimes feel that as opposed to encouraging settlement Part 36 has imported an additional layer of complexity into proceedings. This is the 2nd part of this article consider some essential... |
Can Incidents of Medical Negligence Be Reduced if NHS Trusts Shared More Data and Information on Medical Errors? - Jeanette Whyman, Wright Hassall It would be a truth universally acknowledged among sensible people that the sharing of information on best practice, and the identification of meaningful trends gleaned from data, can only be a bonus for all organisations regardless of operation... |
 Part 36: All Change Please - Gemma Witherington, Hardwicke Just when you thought you had got to grips with the updated Part 36 rules and post Jackson benefits, the Civil Procedure Rule Committee announced it was considering reforms to Part 36... |
Changes to PD 21 of the CPR From 1st October 2014 - Thomas Crockett, 1 Chancery Lane From 1st October 2014 there will be two important changes to the Practice Direction to Part 21 of the CPR which affect the preparation and conduct of settlement approval hearings. |
| Is a "Disposal Hearing" a "Final Hearing" - Paul Stanton On a superficial level, the answer seems to be a fairly simple "Yes"! However, in the world of litigation, the obvious may not always be that obvious after all.......! The case of Taylor v Bunter came before DJ Doyle on the 18th September 2014. The crux of the dispute was which band of... |
Loss of Earnings: the "Ogden Approach" in Practice: Two Cases Examined - Gordon Exall, Zenith Chambers Several years ago the notes to the Actuarial Tables set out a more "scientific" means of assessing damages for future loss of earnings. In essence this is done by using the difference between the multipliers in relation to... |
 The Difference Between Winning and Losing - Bill Braithwaite QC, Head of Exchange Chambers One of the topics I blog about most is the selection and use of experts in catastrophic injury litigation. The reason is that it is one of the most important topics; good experts help us to win cases, bad ones damage or lose them. |
 Schedules, Counter Schedules and the Gadget Generation - Simon Readhead QC, 1 Chancery Lane No self-respecting Schedule of Loss is now complete without a hefty claim for "Assistive Technology" items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in... |
 Disability in the Labour Market: Another Example Where the Actuarial Tables Could Not Be Used - Gordon Exall, Zenith Chambers It is interesting to look at an example of an award for disability in the labour market being used in practice. In the Northern Irish case of Hazlett -v- Robinson [2014] NIQB 17 Gillen J contains a succinct review of the relevant case law... |
Fast Paced Change in Catastrophic Brain Injury Litigation - Bill Braithwaite QC, Head of Exchange Chambers Over the years, management of catastrophic brain injury has become increasingly specialised for lawyers, and it is interesting to see how some litigators have failed to keep up with the changes... |
| Summary of Recent Cases, November 2014 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, November 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: CPR 31.16 |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
| Challenges for 2015 for Experts - Hugh Koch and Hayley McCann Review of 'Psychological Assessment of Symptom and Performance Validity, Response Bias and Malingering'. Bush S S, Heilbronner R L and Ruff RM. Psychology Injury and Law (2014) 7; 197 - 205 |
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October 2014 Contents
 Welcome to the October 2014 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
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| Personal Injury Articles | |
 Recent Developments in Asbestos Litigation - Niall Maclean, 12 King's Bench Walk Asbestos-related illnesses continue to be litigated controversially, with no apparent let-up in the number of new claims and the complexity of the issues they generate. In this article I hope to give a flavour of some of the most important developments in this area over the past year or so... |
 Part 36 and PI Claims: Truth and Myths - John-Paul Swoboda, 12 King's Bench Walk Part 36 was brought into existence to encourage settlement between the parties. However it can sometimes feel that as opposed to encouraging settlement Part 36 has imported an additional layer of complexity into proceedings. This article will consider some essentials truths about part 36 and some myths about part 36. |
 Awarding Aggravated Damages in Sexual Abuse Claims - Helen Nugent, No 18 Chambers With the ongoing process of Operation Yewtree and the decision of the Yorkshire Police last month to commission an independent investigation into its handling of the Rotherham child exploitation scandal, reports of historic sexual abuse have a continued and wide reaching presence in the national headlines. |
 Editorial: No Information - Aidan Ellis, Temple Garden Chambers In claims arising from road traffic accidents, where the Insurer has concerns about the claim presented, it is becoming increasingly difficult to advise the Claimant about the merits of their claim pre-action. The reason is that Insurers commonly send a letter repudiating the claim but not setting out... |
 RTA Protocol: Late Final Payments Are Not a Ticket to Greater Costs - Matthew Hoe, Jaggards & Taylor Rose Law Can a claimant tear up the agreement and issue Part 7 proceedings for the damages if the defendant fails to pay damages and/or costs within 10 days of a settlement at Stage 2 of the RTA or EL/PL Protocol? That was the issue before the court in Coggon v Irvine... |
 Limitation: Did Curiosity Kill the Cat? - Luke Andrew Menary, Barrister, Liverpool Civil Law Considering the impact of Collins v The Secretary of State for Business Innovation and Skills [2014]... |
 Vnuk: End of the Road? - Nicholas Bevan, Solicitor, Mediator, Consultant and Trainer On 4th September the Court of Justice of the European Union (CJEU) delivered what is arguably its most important ruling to date on the scope of compulsory third party motor insurance (TPMI). The decision in Damijan Vnuk v Zavarovalnica Triglav d.d., [2014] CJEU Case C-162/13 is a 'game-changer'... |
 Top Five Tips for... Video Surveillance - Sarah Venn, Hardwick Watch all of the surveillance. As Barabara Fari discovered, surveillance evidence can be powerful and turn a case upside down. However, both sides need to carefully and methodically review surveillance evidence before drawing conclusions about its impact on a claim. Surveillance companies typically adopt the "Match of the Day" approach... |
 QOCs and Tour Operators: Further Thoughts - Matthew Chapman, 1 Chancery Lane This Note is a further rumination on Frances McClenaghan's recent post about the Court of Appeal's very recent decision in Wagenaar. It considers the tactical implications (for Tour Operators) of the QOCs rules (in respect of Part 20 recovery claims against local suppliers). |
Adjusting the Ogden Reduction Factors to Reflect a Spectrum of Disability - Jack Harding, 1 Chancery Lane In the context of a claim for future loss of earnings, for a number of years the Courts have been grappling with the thorny issue of when it is appropriate to adjust the reduction factors (RF) in Ogden tables A to D (contingencies other than mortality) to reflect the particular circumstances of the claimant and the... |
| Jackson Takes Stock - Flora Wood, Ashfords Solicitors In a keynote speech on 30 September 2014, Lord Jackson reminded us of his vision for the future. Whilst the Rule Committee has introduced new fixed costs rules for fast track personal injury cases (amending CPR Part 45), effective from 1 April 2013, these fixed costs are lower than... |
 Does Fatal Accident Legislation Treat Gay Men and Gay Women Differently? - Gordon Exall, Zenith Chambers As currently drafted the Fatal Accidents Act 1976 could treat gay men and gay women differently. Here I look at the reason why and examine the possible solution. |
| The Less Advantageous Part 36 Offer: Costs Consequence Following Variation - James Manning, Chartered Legal Executive, Plexus Law What are the cost consequences of accepting a Part 36 offer where, after the relevant period under r 36.2(2)(c) had expired, an offeror varied the terms of the offer under r 36.3(6) to make it less advantageous? This issue was considered in Burrett v. Mencap Limited [2014]. |
Live in Carers: Always Explore the Alternatives - Bill Braithwaite QC, Head of Exchange Chambers Several years ago, there was a trend for insurers to suggest that people who had been catastrophically injured could be looked after by "live-in carers". It became a term with a specific meaning, namely the equivalent of a housekeeper. The carer would work 24 hours a day, sleeping normally at night in the patient's home... |
 Loss of Services Claim for "Housewife" Is Not a Nominal Loss - Gordon Exall, Zenith Chambers I looked at the case of Knauer -v- Ministry of Defence [2014] EWHC 2553 (QB) earlier. However one significant aspect of the case justifies close examination. The judge put a clear and definite value on the loss to a widower caused by the death of his wife who were in a "traditional" relationship where she did all the housework... |
Unacceptable Behaviour From Experts - Bill Braithwaite QC, Head of Exchange Chambers I saw a client recently who had visited quite a lot of medico-legal experts. He has sustained a serious brain injury, as well as many other serious injuries. He was accompanied by a member of his family; she seems to me to be an extremely sensible and nice person. According to her, the consultation with the expert (a doctor) was "horrible"... |
| Is There a Fourth Way to Assess Future Loss of Earnings? - Geoff Owen, Greenwoods Solicitors Once upon a time there was the Smith v Manchester award. If the claimant returned to work but with a disability which put him at a substantial and not speculative or fanciful disadvantage on the open labour market, he would receive an award, often linked to so many... |
 Pressure by Insurers to Settle - Bill Braithwaite QC, Head of Exchange Chambers There's a real tension, I think, between finishing a catastrophic injury claim quickly, and getting the right result. Insurers seem to me to be pushing hard in many cases to have early meetings, to become involved in rehabilitation, and they use that process to pave the way for early settlement discussions... |
| Summary of Recent Cases, October 2014 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, October 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Ogden Tables A to D: The Use of Adjusted Reduction Factors. |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
| How to Verify Details of What Claimants Tell Us - Dr Hugh Koch and Dr Caroline Formby Review of Article: Exploiting liars' verbal strategies by examining the verifiability of details - Nahari G, Vrij A and Fisher R P - Legal and Criminological Psychology (2014) 19, 227-239 |
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| Expert Witness Articles | |
 Switching Experts - Chris Pamplin, Editor of the UK Register of Expert Witnesses Chris Pamplin looks at what can be done when your expert's opinion changes. In these days of austerity and with a cost-conscious judiciary, less leeway is likely to be given to parties in matters of procedure, including late applications relating to expert evidence... |
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![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)
