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September 2014 Contents
 Welcome to the September 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 | |
 Back to Basics: Should Credit Hire be Stripped? - Gary Herring - Horwich Farrelly Solicitors In Dimond v Lovell the House of Lords made it all seem so simple. In a case where the claimant sought hire charges in the princely sum of £346.63, it was held that a claimant who uses a credit hire service, even where doing so is perfectly reasonable, nonetheless cannot recover the... |
 From Eeles to Haynes: Interim Payments, Periodical Payments, and Accommodation Needs - Angus McCullough QC & Jessica Elliott, 1 Crown Office Row A seriously injured claimant urgently requires alternative accommodation with adaptations for her disability, and space for necessary equipment, carers, and therapies. Liability has been admitted or compromised by the defendant, but any assessment of damages hearing will be many... |
 Editorial: Fundamental Dishonesty and Discontinuance - Aidan Ellis, Temple Garden Chambers It is well known that Qualified One Way Costs Shifting protects unsuccessful Claimants against the enforcement of costs orders against them, unless certain exceptions apply. One such exception arises where the claim is fundamentally dishonest. Often this can be determined at... |
 Damages for Pain and Suffering Prior to Death and Reduction of Life Expectancy: Important Court of Appeal Decision - Gordon Exall, Zenith Chambers The case of Kadir -v- Mistry [2014] EWCA Civ 1177 deals with two important questions in relation to pain and suffering prior to death. Firstly should there be an award for pain and suffering in circumstances where the deceased person would have had the same symptoms but... |
 You May Delay, but Time Will Not. Benjamin Franklin - Sophie Beesley, Old Square Chambers Colefax v First Tier Tribunal (Social Entitlement Chamber) & Anr v Criminal Injuries Compensation Authority [2014] EWCA Civ 945. The Criminal Injuries Compensation Authority deals with claims from those injured as a result of a violent crime. Mr Colefax's case concerned the interpretation of paragraph... |
 Denton and the Misunderstanding of Mitchell - Jim Hester, Parklane Plowden Chambers Hot on the heals of the seminal Mitchell judgment in November, and the resulting impact on the civil justice system, the Court of Appeal has found it necessary to refine the way that Judges should approach applications under CPR 3.9 - Relief from Sanctions... |
 "Professional" McKenzie Friends: LSB Reaction to Consumer Panel's Recommendations - Thomas Crockett, 1 Chancery Lane Those of us who are professional advocates reacted largely with horror when the Legal Service Consumer Panel called in April of this year for a "culture shift" in favour of recognising the rise in and increasing use of paid McKenzie Friends in our courts by extending regulation to... |
 The Law Relating to Fatal Accidents: An Introduction - Gordon Exall, Zenith Chambers This article provides a brief overview of the law in relation to fatal accidents. When a person is killed a claim can be brought on behalf of his estate or on behalf of their dependants. The person or persons who bring the action are called the "claimant" or "claimants" (if more than one person brings the action)... |
 A Judgment for What? The Effect of Default Judgments - Paul Stagg, 1 Chancery Lane Where a defendant admits breach of duty but wishes to contest causation, injury and quantum, it has in the past been common practice for it to allow judgment to be entered in default of Acknowledgment of Service or of Defence and to proceed to contest the remaining issues at... |
 Why Insurers Are Keen on Early Settlement Meetings! - Bill Braithwaite QC, Head of Exchange Chambers I'm often unsure about whether we personal injury lawyers in catastrophic claims should strive for an early finalisation of the claim, or should we just let the litigation take its course, and have a settlement meeting when all the evidence has been prepared, and the case is approaching Court... |
 Fatal Accident Dependency Claims: A Working Example: Death of a Wife & Mother as a Result of Mesothelioma - Gordon Exall, Zenith Chambers Reports of decisions on dependency calculations are always welcome. Fatal accident damages account for 4% of payments made in personal injury claims. The number of reported cases on damages is relatively small. Cases are often better investigated and less likely to go to trial because... |
 It's Not All Pounds and Pence - Richard Fraser, Frenkel Topping The continued care and welfare benefits needs of those with personal injury or clinical negligence awards can be confusing and stressful matters. Yet as Richard Fraser, Managing Director of Frenkel Topping, explains, concerns aren't always focused on the pounds and pence but often the options for wellbeing and care - the ability for an individual, their carers or deputy to choose the best possible care solutions, for life. |
 The Ever-Ageing 13-Year-Old Compensation Discount Rate - Thomas Crockett, 1 Chancery Lane There has been a further delay to the much-anticipated and important decision on the discount rate to be applied to compensation. And this comes almost two years after conclusion of the consultation on the question of whether the current rate of 2.5% should be modified. |
 A Head for Heights - Simon Readhead QC, 1 Chancery Lane "I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder". I was reminded of this old one liner when reading the latest instalment of the government's Red Tape Challenge. This is the revised guidance issued by... |
 Expert Support - Ian Gascoigne, Eversheds LLP In October 2014 new guidance published by the Civil Justice Council (CJC) will replace the protocol for instructing expert witnesses in civil cases. The protocol is part of the practice direction to CPR 35, but this will be removed, leaving the guidance as a free-standing document. The guidance is... |
 The Right to Choose - Bill Braithwaite QC, Head of Exchange Chambers I've recently spent a few very pleasant hours sitting in a client's wonderfully adapted house, looking out over his fields, and wondering about how his future will work out. He and his wife made a conscious choice to buy a house that suited them following catastrophic injury, rather than... |
 Coroners, Consistency and Change - Simon Readhead QC, 1 Chancery Lane Harold Macmillan is famously said to have observed that: "There are three bodies no sensible man directly challenges: the Roman Catholic Church, the Brigade of Guards and the National Union of Mineworkers". To this list should perhaps be added the Royal British Legion... |
 Summary of Recent Cases, September 2014 Here is a summary of the recent notable court cases over the past month. |
 PI Practitioner, September 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: The "Coincidence of Location" Fallacy |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 The Effectiveness of Brief-CBT for Post Traumatic Stress Following Road Traffic Accidents - Dr Claire Wilson Road traffic accidents have been reported as the ninth greatest contributor to the global burden of disease by the World Health Organisation (WHO, 2004). On current trends, their figures have suggested that road traffic injury may well become the third greatest contributor to the global burden of disease by 2020. |
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August 2014 Contents
 Welcome to the August 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 | |
 Editorial: On Unreasonableness and Opportunism - Aidan Ellis, Temple Garden Chambers One of the surprising aspects of Denton v TH White Ltd [2014] EWCA Civ 906, was the criticism which the Court of Appeal reserved for those who resist successful applications for relief from sanctions. According to Denton, unreasonableness and opportunism are inimical to cooperation and the avoidance of... |
 Akhtar v Boland: Costs Game-Changer - Matthew Hoe, Jaggards & Taylor Rose Law The Court of Appeal's decision in Akhtar v Boland [2014] EWCA Civ 872 is at first blush only about the appropriate track for a low value claim. But it has wider implications. In confirming that 'any amount not in dispute' when determining the value of a claim for allocation purposes is wider than... |
 Bullying, Confused Perceptions and Stress Claims - Liam Ryan, Ely Place Chambers In stress claims where there is evidence that an employer was on express notice of an employee's stress related condition (e.g. such as by emails, letters, appraisals and minutes), the law is relatively clear. However, there was less clarity as to how the courts would deal with... |
 Gray v Botwright - Paul Oakley, 1 Essex Court On 5th July 2010 Mr Gray was driving along the A143 in Bradwell, Norfolk. His intended route of travel was to the right into Long Lane. This is part of a 5-route junction controlled by 11 traffic lights and drivers intending to turn into Long Lane do so by way of slip lane with a filter arrow... |
 Damages Guidance in Brain Injury Cases - Nigel Cooksley QC & Rosalie Snocken, Old Square Chambers This article is designed to give some guidance to Claimant lawyers on issues and matters to consider regarding quantum in cases involving serious brain injury, particularly looking at the gathering of evidence ready for preparation of the schedule. |
 Can You Have Your Cake and Eat It? - Helen Tinkler, CILEx, CILEx Law School, Bar Standards Board and Whatley Weston & Fox Following Denton v TH White Ltd; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies [2014] EWCA Civ 906, litigation life might have seemed momentarily sunlit and calm as we slipped into the summer months but now the heat is up for litigators preparing statements of case... |
 Doctor! Doctor! Can I Have a Second Opinion? - Ruwena Khan, Zenith Chambers At a time when the law of medical negligence is under particular scrutiny with the second reading of the Medical Innovation Bill (the 'Saatchi Bill') having taken place on 27th June 2014 and the government requiring significant amendments to be made to ensure that doctors are not at risk of... |
 Mcgregor v. Genco (FC) Ltd: Time and Duty - Simon Morrow & Malcolm Keen, BLM An employer's duty at common law is to take reasonable care to protect its employees from a foreseeable risk of injury. In mesothelioma and other asbestos-related illness cases, foreseeability of the risk of injury has a particularly significant role. The recent High Court mesothelioma case... |
 Walsall MBC v Millard - Matthew White, St John's Chambers Matthew successfully represented the defendant/appellant highway authority in Walsall MBC v Millard, unreported, Walsall County Court (HHJ Gregory), 30/6/14, a decision that should give solace to highway authorities worried about the implications of the decision in Wilkinson v City of York Council [2011] EWCA Civ 207. This email address is being protected from spambots. You need JavaScript enabled to view it. |
 Fighting Fraud: Paying Off for Motor Insurers and Their Customers? - Thomas Crockett, 1 Chancery Lane Recent growth has been seen in the litigation market in the field of allegations of fraud in road traffic accident cases. Insurers (particularly certain insurers) have latterly been far more confident in fighting claims where there is good evidence of something untoward: dishonesty, such as... |
 Exit Mitchell, Enter Denton - Ian Miller, 1 Chancery Lane Our jurisdiction generally does not favour laws (whether judge- or parliament-made) which fail to take account of what is just in the individual circumstances of the particular case. The common law prides itself in being able to adapt to new situations to yield what we would generally understand... |
 Court of Protection in the Spotlight - Eddie Fardell, Thomson Snell & Passmore The Court of Protection found itself in the spotlight again recently when Cathy Watson, the mother of a girl severely injured at birth, was found guilty of plundering her daughter's damages award. She was sentenced earlier this year, and handed down a prison term of 5½ years. Her ex-husband... |
 Costs Management - Nicholas Lee, Managing Director of Paragon Costs Solutions By now many readers will have prepared or seen a costs budget and experienced a Costs Management Conference (CMC). With little by way of reported decisions, I take this opportunity to share some of our experiences and the lessons learned. |
 Allocation and Admissions - Ian Miller, 1 Chancery Lane Where a defendant admits a part of a claim, how does the admission affect the allocation of the claim? This was the question considered in Akhtar v Boland [2014] EWCA Civ 872. The defendant filed a Defence admitting hire, recovery and storage charges in the sum of... |
 Jet2.com Limited v Huzar and the Extraordinary Circumstances Exception - Frances Mcclenaghan, 1 Chancery Lane Whilst this appeal concerns fixed compensation for flight delay under the Regulations rather than personal injury it is of interest to travel law practitioners whose work encompasses both specialisms (as well as the numerous other international conventions engaged when holiday makers have accidents abroad). |
 Mitchell Misunderstandings - Bill Braithwaite QC, Head of Exchange Chambers The Court of Appeal gave judgment in a way which has caused a lot of critical discussion amongst practising lawyers. They said that "the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be... |
 Grasping the Nettle: the Need for Employees to Make an Employer Aware of Stress - Liam Ryan, Ely Place Chambers An issue which continues to be prevalent in stress cases is how to approach cases where an employee conceals his or her stress from an employer prior to a breakdown. The recent Judgment in Bailey v Devon Partnership NHS Trust [2014] WL 3387689 has raised a number of points... |
 Instructing an Accountant in PI Cases Post-Jackson - Richard Formby FCA MAE, Experienced Accountancy Expert Witness & Partner at Monahans, Chartered Accountants Having provided quantum expert support in Personal Injury claims for over 25 years, it has been interesting to watch the recent development of the tough PI litigation environment. I have observed over the past six months or so, a marked difference in attitude by courts and, particularly... |
 Drug Dealer's Injury Damages Bonanza - Ivor Collett, 1 Chancery Lane In a result which the judge acknowledged had scope to cause some serious head-scratching among ordinary members of the public, a drug-dealer has recently succeeded in a damages claim against the UK government because domestic legislation denied him the ability to... |
 Recent Cases on Fatal Accidents Considered - Gordon Exall, Zenith Chambers Here we review recent cases relating to fatal accidents. (1) Accidents abroad and the scope of the Fatal Accidents Act; (2) Cohabitation, human rights and the Fatal Accidents Act; (3) Valuing a dependency claim; (4) Damages for loss of consortium... |
 Dealing With Setbacks - Bill Braithwaite QC, Head of Exchange Chambers I saw a young client recently who has been really struggling to get his life back after catastrophic brain injury. He has been growing through his teen years, coping with difficult family life, and gradually discovering how much he can't do. Along the route, he has been to inappropriate... |
Summary of Recent Cases, August 2014 Here is a summary of the recent notable court cases over the past month. |
| PI Practitioner, August 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month, Denton & ors v TH White Ltd & ors [2014] EWCA Civ 906. |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Post-Concussion Syndrome and the Role of The Clinical Psychologist: Article Review - Dr Karen Shannon, Clinical Psychologist & Dr Karen Addy, Clinical Neuropsychologist In a recent article published in Clinical Psychology Forum Dr Phil Moore reviewed the role of Clinical Psychology in the assessment and treatment of post-concussion syndrome. In this brief review Dr Shannon and Dr Addy highlight the need for such assessment within the medico legal context. |
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July 2014 Contents
 Welcome to the July 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 | |
 Editorial: Partial Admissions and Tactics for Allocation - Aidan Ellis, Temple Garden Chambers In a claim for credit hire charges (or indeed any special damages) which slightly exceeds the small claims track limit, can the Defendant avoid the cost bearing fast track by making a tactical admission for part but not all of that item of special damage? That was the issue before the Court of Appeal in... |
 Public Nuisance and Other Miscellaneous Provisions: How They Can Assist With Highways Cases - Andrew Mckie, Clerksroom Chapter 9 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. The following chapter is predominantly designed to deal with nuisance but will also look at other miscellaneous provisions in highways cases including highways cases involving... |
 Limitation; Calibrating Pre-Knowledge Prejudice - Andrew Roy, 12 King's Bench Walk Collins v (1) Secretary of State for Business Innovation and Skills (2) Stena Line Irish Sea Ferries Ltd [2014] EWCA Civ 717. The time limit for bringing a claim for personal injury is three years from when the cause of action accrues (s11 Limitation Act 1980) or, if later, from when the claimant possessed... |
 Litigation Tips & Tactics in Highways Slipping and Tripping, Occupiers and Defective Premises Claims - Andrew Mckie, Clerksroom Chapter 10 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. One of the ways in which the claimant's lawyer can deal effectively with highways slipping and tripping claims, occupiers' claims and defective premises claims is not only in the quality of the evidence of the case and assessing the same together with the credibility of the witness but the litigation tactics one chooses to... |
 Counting the Costs of Improper Cost Management - Fraser Lindsay, 7 Harrington Street Chambers In the brave new post Jackson/Mitchell world many will open their e-mails with trepidation in the fear that a new decision has been reached by the Higher Courts reemphasising the 'comply or die' ethos that appear to run through the heart of the Jackson' reforms. |
 Defective Premises Act 1972 and Claims Under The Landlord and Tenant Act 1985 - Andrew Mckie, Clerksroom Chapter 11 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. The Defective Premises Act 1972 represents an important piece of legislation when dealing with slipping and tripping claims that may occur on a landlord's premises... |
 Service of Supplementary Witness Statements in a Post-Mitchell World - Jack Harding, 1 Chancery Lane In many cases the Court orders parties simultaneously to exchange witness statements. The rationale is clear: sequential exchange may well give one party an unfair advantage in terms of the ability to tailor the content of their own statements in response to the statements served by the other side... |
 The Future Of Slipping & Tripping Litigation - Andrew Mckie, Clerksroom Chapter 12 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. As the reader will have noted from this book, slipping and tripping litigation, although sometimes on its facts may appear to be fairly straightforward, one can see that how the case law... |
 Can the Limitation Act Really Be Suspended? - Tim Hirst, Parklane Plowden Chambers "Standstill agreements" have become quite common, perhaps as a result of the effectiveness of the pre-action protocols. The version I have seen simply comprises an agreement that, "time will be suspended". Others refer to a "Time Stop" agreement. I assume that it was intended that the... |
 Bite Size RTA Case Law Update - Bronia Hartley, Zenith Chambers Road traffic accidents are notoriously fact specific, but looking at those cases which go to trial can be helpful in terms of understanding what judges think is important. Here I look at three very different recent cases. In Jade Christian v. South East London & Kent Bus Co. the court... |
 Dunhill v Burgin: Litigation Capacity - Sam Chandler, Pupil at Five Stone Buildings Litigation capacity is a live issue for any practitioner working in the field of personal injury law. A party who has suffered an injury with adverse consequences on their short or long term mental ability may well fall short of the required capacity threshold. If so, they will require a... |
 Rescued From an Error of Procedure - Ian Miller, 1 Chancery Lane Rule 3.10 rescues parties where "there has been an error of procedure such as a failure to comply with a rule or practice direction". Where it applies "the error does not invalidate any step taken in the proceedings unless the court so orders". The question therefore is when an error is merely an error of... |
 Sweet Relief: To Mitchell or Not to Mitchell, That Is the Question - Andrew Sugarman & Gareth Price, Parklane Plowden Chambers Andrew Sugarman and Gareth Price take stock of the position on relief from sanction following Mitchell and Denton... |
 Jackson on Jackson - Ian Miller, 1 Chancery Lane "It was no part of my recommendations that parties should refrain from agreeing reasonable extensions of time, which neither imperil hearing dates nor otherwise disrupt the proceedings" said Jackson L.J. in Hallam Estates Limited v Teresa Baker [2014] EWCA Civ 661... |
 Legislating for "Statutory Common Sense" and Personal Injury Litigation? - Thomas Crockett, 1 Chancery Lane A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might... |
 Less of the Male, Pale and Stale? Judicial Appointment Statistics Published - Thomas Crockett, 1 Chancery Lane The Bar is quite properly concerned about diversity amongst its ranks. However attention yesterday was paid to diversity amongst those who sit a little higher up than counsel in court... |
 The Mesothelioma Act 2014 - Alan Joliffe, IBB Solicitors The Mesothelioma Act 2014 received Royal Assent at the end of January this year. This meant that the Secretary of State was in a position to set up a payment scheme providing for "substantial" payments to "some" mesothelioma sufferers in "some" circumstances and it was... |
 Referral Fee Ban Does Not Mean You Have to Become an ABS - Simon Gibson, SGI Legal It's clear it's been a bumpy ride for some PI firms these past 18 months. Many have adapted well, those that haven't have exited the market, or gone bust in defiance. Some legal and insurance firms have gone the extra mile and formed an Alternative Business Structure to ensure... |
 Greater Clarity From SRA for Successor Practices Is Needed - Simon Gibson, SGI Legal With law firms looking to find ways to create new revenue streams and remain on-side with LASPO, the Solicitors Regulation Authority (SRA) and Professional Indemnity Insurers need to issue proper guidance on when those buying work-in-progress will be considered a... |
 We're on the Right Road in Whiplash Journey - Philip Waters, Your Legal Friend Philip Waters, RTA solicitor, Your Legal Friend responds to the Transport Select Committee's recent report: Driving premiums down: fraud and the cost of motor insurance. |
 Whiplash and Co, A Different Slant - Richard Scott-Watson, RSW Medico Legal Ltd Whiplash Associated Disorder is itself associated with a number of other conditions some of which can manifest in the early stages and some which may not appear until later. It is a common complaint that at or near the time of the accident the claimant suffered some form of... |
 Celebrating 25 years of PPOs - Richard Fraser, Frenkel Topping Cathy Kelly is a living, breathing case for structured settlements, says Richard Fraser. |
| Summary of Recent Cases, July 2014 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, July 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Treating Trauma Amongst People on the Autistic Spectrum Disorder - Dr Laura Findlay, Clinical Psychologist with Applied Psychology Solutions & Dr Kathryn Newns, Clinical Psychologist with Hugh Koch Associates Traumatic events can overwhelm a person's ability to cope and can lead to serious long-term negative consequences for their mental health (in PI work we see individuals following trauma who are experiencing psychological symptoms such as anxiety, depression, phobic responses, and sometimes more severe responses such as acute stress disorder or post-traumatic stress disorder)... |
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June 2014 Contents
 Welcome to the June 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 Download PIBULJ PDF to Read on your PC, Phone or Tablet We have made this month's issue into a PDF so that you can download it to read on the train, in the garden, or anywhere else you might not have a good internet connection. There are two versions, one is optimised for reading on a computer, iPad, other tablets, or for printing. The other one is optimised for reading on iPhones, Android phones etc. Access the PIBULJ June 2014 PDF Version
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| Personal Injury Articles | |
 Highways Act Claims: The Law, Important Cases And Section 58 Defences - Andrew Mckie, Clerksroom Chapter 8 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will deal predominantly with Highways Act tripping claims due to defects in the road or pavements. The chapter will look at relevant case law and defeating section 58 defences... |
Editorial: Sentencing Dishonest Claimants - Aidan Ellis, Temple Garden Chambers In recent years, Insurers seem to be enjoying more success in defending claims, particularly arising out of road traffic accidents, which are fraudulent or exaggerated. Where a Claimant (or indeed a witness) is found to be dishonest, Defendants increasingly seek to have... |
 Claims Under the Occupiers' Liability Act 1984 - Andrew Mckie, Clerksroom Chapter 7 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. It is clear that the Occupiers' Liability Act 1957 has no application where there are trespassers on land as opposed to a visitor within the meaning of the 1957 Act... |
 Why Employment Lawyers Should Also Be Civil Lawyers and The Risk of Estopping Your Client - Richard Coulthard, Michael Lewin Solicitors Most individuals assume that if a dispute arises between themselves and their employer that they will need to take action in the Employment Tribunal and will approach an Employment Lawyer. Historically there have been significant advantages to... |
 Occupiers' Liability Special Considerations, Children and Independent Contractors - Andrew Mckie, Clerksroom Chapter 6 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will look at the special considerations such as cases involving children and independent contractors, provide a summary of the cases in this area and special... |
Chartwell Estate Agents and the Mitchell decision - Lisa Dobie, 1 Chancery Lane Having delivered and attended several post Mitchell case updates, one recent decision that surprised and interested me (in the context of other post Mitchell decisions) was Chartwell Estate Agents Ltd v (1) Fergies Properties SA and Another [2014] EWHC 438. This decision was appealed and the Court of Appeal's decision appeared on Lawtel... |
 Dealing With Occupiers' Liability Claims: the Law, Case Summaries and Gathering Evidence - Andrew Mckie, Clerksroom Chapter 5 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter will deal with slipping and tripping cases in relation to supermarkets, shopping centres and other licensed premises, on private land where the Occupiers' Liability Act 1957... |
 No Sudden Outburst of Honesty by Under-Compensated Miner - Ivor Collett, 1 Chancery Lane The Court of Appeal has recently upheld a County Court Judge's decision to award damages to a former miner who complained that he had been under-compensated in an industrial injury scheme. One of the reasons given was that the Defendant's explanation for the Claimant's conduct was... |
 Trouble with the Uninsured Drivers Agreement - Paul Williams, Greenwoods Solicitors In the case of Delaney v The Secretary of State for Transport [2014] EWHC 1785 (QB) the court held that clause 6(1)(e)(iii) of the Uninsured Drivers' Agreement 1999 (the Agreement), the so-called "crime exception", is incompatible with the EC Motor Insurance Directives. |
 What's Trivial? - Andrew Spencer, 1 Chancery Lane There are an increasing number of reported cases about breaches that can be characterised as "trivial" and thus meriting relief from sanctions without the need to show a "good reason", providing the application was made promptly. One example is Adlington... |
 Touching a Nerve: Clinical Negligence, Malcolm Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QBD) - Ruwena Khan, Zenith Chambers A surgeon had divided a patient's ulnar digital nerve during an operation and he had been negligent in failing to recognise that fact and to consider repairing it. It was not established that the patient's palmar cutaneous nerve had been divided in a later operation. Judgment in part for... |
 Private International Law and PI: Final Gasps of the 1995 Act? - Matthew Chapman, 1 Chancery Lane As we move further and further away from 11 January 2009 (the date of application of the Rome II Regulation (EC No 864/2007) which governs applicable law in tort: see, Homawoo v GMF Assurances SA [2012] Case C-412/10) we see less and less of Part III of the Private International Law... |
| The Real Cost of Litigants in Person - Simon Trigger, 1 Chancery Lane We all know the stereotype of a litigant in person: they turn up at court with numerous carrier bags filled with copious quantities of irrelevant documents heavily annotated in green ink. The parties in Mole v Hunter [2014] EWHC 658 (QB), both litigants in person, did not conform to that stereotype... |
 Mcdonalds Coffee Case, Round Two - Simon Trigger, 1 Chancery Lane Many of us will be familiar with the much ridiculed but ultimately successful 1994 McDonalds coffee claim made in America. For those who do not know the facts of that case the Claimant suffered third degree burns to her legs due to a McDonald's coffee that they claimed was excessively hot and which... |
 Removing the Shackles? - Bill Braithwaite QC, Head of Exchange Chambers Yet another procedural decision, but an interesting one. In a road traffic accident, the defendant in his defence denied liability and included the words "the Claimant caused the collision". The Defence did not include an explicit claim for contributory negligence, although it was obvious that... |
 New Guidance on Health and Safety in Docks and Ports - Gordon Exall, Zenith Chambers The Health and Safety Executive has produced new Guidance on Health and Safety in Docks and Ports. The HSE state: "The new guidance (Safety in Docks: Approved Code of Practice and guidance - L148) replaces the existing Approved Code of Practice (COP25) which has been... |
 The Future of Expert Evidence in Personal Injury Cases - Paul Phillips, Greenwoods Solicitors As a solicitor involved in handling largely catastrophic personal injury cases, I spend many of my waking hours reading the often competing reports of a wide range of medical and non-medical experts. In a large number of cases the injuries are remarkably similar; the experts are pretty much... |
 Causation, Reliance... and Loft Hatches - Andrew Spencer, 1 Chanery Lane The recent Court of Appeal case of Morcom v Biddick [2014] EWCA Civ 182 raises very interesting questions about duties of care, causation and reliance. Mr Morcom is a skilled tradesman with extensive experience in the building trade. Mr Biddick (now deceased) was... |
 Example of a Fatal Award at Trial: Brown - v- Hamid Considered: Claims for Loss of Consortium - Gordon Exall, Zenith Chambers Relatively few fatal cases get to trial. Even fewer involve a consideration by the court of the damages to be awarded under the Fatal Accident Act. The recent decision in Brown - v- Hamid [2013] EWHC 4067 (QB) provides an interesting example of how the courts approach the issue of dependency... |
 Fatal Accident Claims and Applicable Law of the Tort: Cox v Ergo Versicherung AG [2014] UKSC 22 - Matthew Chapman, 1 Chancery Lane The claim arose out of fatal road traffic accident in Germany on 16 March 2004 in which the Appellant's husband was tragically killed after being hit by a car whilst riding his bicycle. The driver of the car was German and was insured by the Respondent, a German insurance company... |
 Risk Management: Avoiding Professional Negligence Claims in the New Litigation Landscape - Peter Causton, Member of Law Society Civil Justice Committee, Mediator and Deputy District Judge There have always been claims against lawyers by disgruntled clients for the loss of opportunity to bring or pursue a personal injury claim, but with the introduction of the cost cutting Jackson Reforms and fixed fees, there are ever more ways in which errors, omissions and misjudgements can occur, leading to... |
Summary of Recent Cases, June 2014 Here is a summary of the recent notable court cases over the past month. |
| PI Practitioner, June 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Further Guidance on Mitchell and Applications for Extension of Time |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 The Relationship Between Perfectionism and Rumination in PTSD - Dr Jenny McGillion Clinicians working therapeutically with clients with Post Traumatic Stress Disorder (PTSD) have long recognised that, for some clients, perfectionistic and ruminative cognitive processes appear to play a part both in the development and maintenance of trauma reactions. Whilst research has demonstrated... |
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 Book Review: Clinical Negligence (Seventh Edition, Bloomsbury Professional) by Charles Lewis, Andrew Buchan Book review by Tim Kevan |
 Book Review: Personal Injury Practice (Sixth Edition, Bloomsbury Professional) by Andrew Buchan, Jenny Kennedy and Eliot Woolf Book review by Tim Kevan |
May 2014 Contents
 Welcome to the May 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 Download PIBULJ PDF to Read on your PC, Phone or Tablet We have made this month's issue into a PDF so that you can download it to read on the train, in the garden, or anywhere else you might not have a good internet connection. There are two versions, one is optimised for reading on a computer, iPad, other tablets, or for printing. The other one is optimised for reading on iPhones, Android phones etc. Access the PIBULJ May 2014 PDF Version
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| Personal Injury Articles | |
 FREE CHAPTER: 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie, Clerksroom A free chapter from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie, Covering how to run highways, occupiers and defective premises claims in an economical and efficient way, post-Jackson and in fixed costs. The book covers issues in relation to Occupiers Liability cases (1957 and 1984), Highways cases (1980), Defective Premises (1972) and nuisance, and in particular focuses on the day to day issues in practice that one encounters with such cases. |
 Costs Budgeting's 'First Birthday': 2014 Update - Tom Gibson, Outer Temple Chambers As costs budgeting passed its 'first birthday' in April 2014, this article summarises the recent CPR updates and case law in the area. It also contains some practical tips for this relatively new area of law. |
| Public Liability and Highways Claims Post-Jackson: Part 36 and Litigation Tactics - Andrew Mckie, Clerksroom Chapter two from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. This chapter deals with using the new amendments to the CPR post April 2013 and post July 2013, when the Jackson reforms came into effect to a) vet cases early on, b) obtain disclosure quickly, and c) settling the case before it gets to trial, and how Part 36 can encourage that. |
 Public Liability and Highways Claims Post-Jackson: The Portals - Andrew Mckie, Clerksroom Chapter three from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. What stays in, and what comes out of the portal, may be a key decision for some claimant law firms as to whether they feel it is economical to undertake this type of work... |
 Editorial: Statements of Truth - Aidan Ellis, Temple Garden Chambers Where a witness has some conversational but imperfect English, whether or not to seek assistance from an interpreter can be a difficult decision. But the consequences of failing to get a statement of case or witness statement properly verified may be severe and it is therefore worth revisiting the key provisions. |
 Public Liability and Highways Claims Post-Jackson: Causation and Initial Liability Investigations - Andrew Mckie, Clerksroom This chapter will concentrate solely on investigating causation in relation to highways slipping and tripping claims and occupiers claims and focus on the early investigations to be undertaken in relation to such cases at the outset. |
| The Forthcoming Guideline Hourly Rates 2014 - Matthew Hoe, Jaggards & Taylor Rose Law The CJC Costs Committee has delayed the announcement of its recommendations for new guideline hourly rates for solicitors. Still, the announcement will be made at some time in the next few weeks. It is likely to be of considerable importance to... |
 Redaction of Expert Reports - Jack Harding, 1 Chancery Lane What is the position where a litigant instructs an expert to comment upon matters within their expertise and the expert, whilst producing an acceptable overall report, trespasses into areas which are the realm of the trial judge? |
 The "Anomalous" Fatal Accidents Act - Charles Bagot, Hardwicke Those are not my words but the view expressed on 2 April by Lord Sumption on the effective over-compensation which can result under the Fatal Accidents Act 1976 ("the FAA")... |
 Mitchell Reaches Hire? - Jasmine Murphy, Hardwicke Eleven years on from the House of Lords' decision in Lagden v O'Connor [2003] UKHL 64 "impecuniosity" remains a hot topic in the world of credit hire. The Court of Appeal case... |
 Setting the Discount Rate: Time to Depart From Wells? - Peter Walmsley, Clyde & Co LLP The overriding principle of damages for personal injuries is restitution, putting the claimant back in the position he/she would have been absent the tort, so far as is financially possible. The claimant is to be provided with 100% compensation, no more, no less... |
 Employers' Liability Insurance: More Risk of Personal Liability for Directors in Scotland - Will McIntosh & Fiona Beal, Brodies LLP Following a recent Scottish court decisioni, there is now a distinction between Scotland and England as to when a director may be personally liable for his company's failure to have proper employers' liability insurance in place... |
 Historic Sexual Abuse: Where Next for Pi Claims? - Catarina Sjoelin Knight, Senior Lecturer at Nottingham Law School and door tenant at 36 Bedford RowSince sex abuse allegations against Jimmy Savile hit the headlines in late 2012 and the Metropolitan Police began Operation Yewtree, historic sexual abuse has rarely been absent from the media. Recent crime figures seem to show a surge in reports of sexual offences... |
 Occupiers Rights... - Angus Piper, 1 Chancery Lane The National Press seem to enjoy the facts of a personal injury claim, decided last week in the High Court by John Leighton-Williams QC, sitting as a Deputy High Court Judge. The case was Lisa Driver v Roman Painted House Trust and Dover City Council. It arose from a night out in July 2007, where Mrs Driver had... |
 Accidents at Work: The TUC and the Myth of The Compensation Culture - Gordon Exall, Zenith Chambers The TUC's ever helpful guide to health and safety is out for April and available online . The Bulletin covers numerous aspects of health and safety in the workplace. However one notable article relates to the "compensation myth". |
 Beauty is a Fragile Gift (Ovid): The Decision in Webster v Liddington [2014] EWCA Civ 560 - Sarah Prager, 1 Chancery Lane Sarah Prager considers the impact of the recent decision of the Court of Appeal in Webster v Liddington [2014] EWCA Civ 560 in cases arising out of negligently performed cosmetic surgery. |
 Vicarious Liability for Associate or Locum Clinicians: Whetstone v Medical Protection Society Ltd - Paul Stagg, 1 Chancery Lane The question of whether practice partners or principals are vicariously liable for negligent treatment provided by associates or locums is one which has frequently exercised the medical defence organisations in recent years. |
 Fatal Accidents Act 1976 Does Not Apply in Foreign Law Cases - Sarah Crowther, 3 Hare Court In a judgment handed down on 2 April 2014, the Supreme Court has considered the application of the principles of the Private International Law (Miscellaneous Provisions) Act 1995 to wrongful death claims where the substantive law is that of a country other than England. |
 Is It Time to Call in the WIP Doctor? - Edel Rome, Citadel Law Edel Rome, solicitor at Citadel Law, shows how diagnostic review can improve financial viability for clinical negligence lawyers. Our diagnostic reviews of law firms' clinical negligence caseloads often highlight low levels of expertise and poor risk management. These have a substantial impact on... |
The Cost of Mental Illness - John van der Luit-Drummond, legal journalist John van der Luit-Drummond takes a look at the legal risks to businesses of not protecting their employees from mental illnesses such as stress and anxiety disorders. |
| Summary of Recent Cases, May 2014 Here is a summary of the recent notable court cases over the past month. |
PI Practitioner, May 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm) |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Some New Thoughts on Anterior Knee Pain - Mr John Mackinnon Anterior knee pain, is a condition in which patients often complain of pain that they experience at the front rather than the back of the knee, and which prevents them kneeling or crouching, climbing or descending stairs or slopes, and which can make sitting with the knees bent really very difficult... |
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| Expert Witness Articles | |
| Accreditation of Medical Expert Witnesses - Mark Solon, Bond Solon Demands imposed on expert witnesses have never been greater. Despite there being no single qualification for experts, who come from a wide variety of backgrounds, the solicitors, insurers and agencies who instruct them need to identify those who understand their duty to the court, and possess... |
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| Marketing for Solicitors | |
 Building a PI Brand - Chris Rodgers, First4Lawyers In today's consumer driven world, what better way to demonstrate who you are, what you do, and how good you are than through a brand? |
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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)
