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January 2014 Contents
 Welcome to the January 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 PDF Version
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| Personal Injury Articles | |
 Low Velocity Impacts: An Update - Andrew Mckie, Clerksroom This free article is an extract from the new book, 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew McKie. It is being published next month by Law Brief Publishing and can be pre-ordered direct from ourselves... |
 A Costs Budgeting Horror Story - Tom Gibson, Outer Temple Chambers Would a district judge strike out a costs budget because it contained the phrase "[Statement of truth]", in square brackets, rather than the full statement of truth wording? Yes, in this particular case, so be warned! |
 Motorcyclists: Overtaking the Queue and Junctions, Jones v Lawton [2013] EWHC 4108 (QB) - Pankaj Madan, Exchange Chambers & 12 King's Bench Walk It is indeed reassuring that despite the decisions of the Courts in relation to Civil Procedure, some cases at least are still making it to trial. One such little noticed case reported on 6th January 2014 is the decision of the High Court of Justice in Jones v Lawton which is a useful case for anybody advising in... |
 Woodland v Essex CC: Can the Duty of Care Owed to a Pupil by a School Be Delegated by the School to a Third Party? - Catherine Leech, Pannone LLP Following a landmark decision in the Supreme Court, the extent to which a school can avoid liability to a pupil where third parties are involved has been determined. It is now clear a school authority has a duty of care to a pupil that is non-delegable - so if they contract out key services to third parties who are negligent... |
 Increased Success Fees, Belated Guidance: Hussain v Chartis Insurance Uk Ltd - PJ Kirby QC, Hardwicke Cases involving pre 1 April 2013 CFAs will remain of importance for a few more years to come and maximising recovery under such CFAs must surely (if sometimes apologetically) be the aim of the receiving party's lawyers. This decision concerned an appeal against the cost judge's refusal to allow... |
 Smith v Secretary of State for the Environment and Climate Change: Guidance on Pre-Action Disclosure - Cathrine Grubb, Civitas Law In the recent case of Smith v Secretary of State for the Environment and Climate Change the Court of Appeal provided clear and useful guidance on the correct approach to applications for pre-action disclosure under CPR r. 31.16. |
 Editorial: The Aftermath of Mitchell - Aidan Ellis, Temple Garden Chambers A simple search on any database will reveal that, as all commentators predicted, the Court of Appeal decision in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 has already been cited by many Courts in rejecting various applications for relief from sanctions... |
 Everett v London Fire & Emergency Planning Authority (2013) - Michael Mulcare, Mayo Wynne Baxter LLP Medical causation became the key issue in this personal injury claim brought by a female fire-fighter, who was injured during a training drill whilst at work. Although the Defendant fire authority was held to be liable for her initial injuries, it was not found liable for her longer-term physical and mental symptoms. |
 Local Standards for Local People: the decision in Japp v Virgin Holidays Limited [2013] EWCA Civ 1371 - Sarah Prager, 1 Chancery Lane Sarah Prager considers the recent decision of the Court of Appeal in Japp v Virgin Holidays [2013] EWCA Civ 371 relating to the local standards defence in holiday claims. |
 Percy Leonard McDonald v (1) Department for Communities and Local Government; and (2) National Grid Electricity Transmission PLC [2013] EWCA Civ 1346 - Matthew White, St John's Chambers Matthew White has recently succeeded in the Court of Appeal in a battle over exposure to a modest amount of asbestos in the 1950s. The Claimant (C) was employed by the predecessor in title of the First Defendant (D1) (the Department of Communities and Local Government, represented by Matthew White) between 1954 and 1959. In the course of that employment he was required to drive into... |
 Two Recent CFA Cases: Effect of a Failure to Serve a Notice of Funding and Powers of the Ombudsman - Thomas Crockett, 1 Chancery Lane There have been two recent decisions concerning Conditional Fee Agreements which should be of interest to any practitioner practising in any area of the law where such funding arrangements are prevalent. The first is Harrision & Anor v Black Horse (20/12/13, Sen Cts Office per Maser Gordon-Saker)... |
 'Plebgate', Budgets, Relief From Sanctions and a New Kind of Justice - Ian Miller, 1 Chancery Lane The Court of Appeal have now finally had their say on the Jackson Reforms: "...we hope that our decision will send out a clear message". The message is that a "new more robust approach..." has arrived. Failure to file a costs budget in time will result in parties being... |
 Severed Fingers and the Erra - Julie Carlisle, Boyes Turner It was reported by the HSE on 6 January that a plastics firm has been fined after an employee had four fingers severed in a circular saw. He had stopped the machine to clear a blockage and the saw blade automatically moved from its operating position to its maintenance position... |
 All Change in Scotland for Civil Litigation Funding - David Armstrong, Brodies LLP 2014 may see the introduction of significant changes in Scotland both on how the civil courts operate and the manner and extent to which costs are recoverable in civil litigation. These changes are currently proposals detailed in two reports. The first is Lord Gill's Report of the Scottish Civil Court Review published... |
 Want to Live Longer... Move to Dorset! - Simon Readhead QC, 1 Chancery Lane Dorset is the birthplace of Thomas Hardy. Hardy loved the Christmas season and his novels, short stories and poems are full of references to it. My favourite Hardy novel "Under the Greenwood Tree" begins on Christmas Eve... |
 The Icing on the Cake: Proximity Needed to Establish a Duty - Ivor Collett, 1 Chancery Lane The Court of Appeal has just overturned a decision in which a surveyor was found jointly liable for personal injuries suffered by some members of the public who were struck by part of a shop sign which fell onto the pavement on Putney High Street... |
 Experts and Advocates - Bill Braithwaite QC, Head of Exchange Chambers Sorting my last year's blogs, I see that I wrote quite a bit about experts - not surprising, as they are fundamentally important to the successful outcome of a case... |
 Mesothelioma Bill: Latest Comments on Today's Third Reading - Jamie Hanley, Pattinson & Brewer Today, Parliament considers the third reading of the Mesothelioma Bill and so I thought it would be appropriate to update on my last comment, which coincided with the second reading of the Bill. I support this Bill. It originates from a consultation launched by the previous Labour Government and follows... |
 Road Traffic Accident Victims Have Their Say - Philip Waters, Your Legal Friend This month we launched the UK Road Traffic Accidents: A Drivers' View' Report, which reveals, for the first time, UK drivers' perspective on road traffic accident claims. The report also researched how personal injury victims will be impacted by the proposed Government reform to increase the threshold for... |
 The True Cost of Change - Lianne Naughton, 7 Harrington Street Chambers The year 2013 saw an amazing change in the legal landscape. Some might say for the better. Most would not. The introduction of the Civil Procedure (Amendment) Rules 2013 following Lord Justice Jackson's review of the Civil Procedure Rules swept in in April... |
 Soft Tissue Injuries and Their Consequences - Fiona Ashworth, Kings Chambers In 2011/12 there were about 1,050,000 personal injury claims, 80% of which were Road Traffic Accidents. 90% of all RTA claims attracted damages of less than £10,000. These statistics confirm what personal injury practitioners know, namely that the vast majority of cases brought are in respect of... |
 When Defendants Treat Us Like Fools - Bill Braithwaite QC, Head of Exchange Chambers Negotiation is a large part of what I do, and I'm always fascinated by the process. Training for personal injury barristers is limited, partly because our negotiations deal only with money. Generally, we can't construct a global deal which meets different expectations... |
 Summary of Recent Cases, January 2014 Here is a summary of the recent notable court cases over the past month. |
 PI Practitioner, January 2014 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Form N251 & the New Rule 3.9 CPR |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 The Psychological Impact of Trauma; It Needs Not Always Be Negative - Paul Elson It is well-recognized in the field of personal injury that suffering from an accident or similarly traumatic event can lead to psychological problems. The symptoms suffered may be relatively mild and below the threshold for a clinically recognized psychological disorder-e.g. depressive disorder, specific phobia, adjustment disorder, etc-or they may be more severe and meet these criteria. In the latter scenario... |
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December 2013 Contents
 Welcome to the December 2013 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 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. 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 December 2013 PDF Version
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| Personal Injury Articles | |
 Too Little, Too Late: Robertson v Dixon (In the Milton Keynes CC 19th April 2013) - Max Withington, Horwich Farrelly The issue of enforceability of a hire agreement is often at the heart of credit hire disputes. It is perhaps a little surprising just how many credit hire agreements we see that are unsigned or signed after hire has ended. This leads to a shrewd defendant citing the case of Company Call Centre Technology Limited - v- Graham Sheehan... |
Difficult Decisions - Tim Hirst, Parklane Plowden Chambers The conflicting Judicial approach to limitation in professional liability cases is revealed clearly in the Court of Appeal decision in Berney - v- Saul [2013] EWCA Civ. 640. This arose out of a mishandled personal injury claim arising out of an RTA on 20th April 1999. The Claim Form was issued at the last gasp on... |
| Ramifications of the Mitchell Costs Appeal - Charles Bagot, Hardwicke There have been lots of sound bites from the costs and CPR compliance judgment dismissing the appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1526. It is the most far-reaching decision in civil litigation since the introduction of the CPR in 1999. Here we look at the consequences... |
The Dangers of Unreasonably Refusing to Mediate: PGF II SA -v- OMFS Company 1 Limited - Kate Andrews, Browne Jacobson LLP Kate Andrews considers the recent Court of Appeal decision in PGF II SA - v- OMFS Company 1 Limited (2013); its importance for those involved in litigation and the adverse costs consequences that can result where a party unreasonably refuses, or ignores, a request to mediate. |
 Editorial: Mapping the New Landscape for the New Year - Aidan Ellis, Temple Garden Chambers In the week since the Court of Appeal handed down judgment in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, I have already relied on it three times and been attacked by it once. This editorial does not attempt to address all the issues which arise from this blockbuster case. Instead, this travel guide to... |
 The Choice of RTA or EL/PL Protocol - Matthew Hoe, Jaggards & Taylor Rose Law Some claims fulfil the legal definitions of more than one type of liability. In the past, that has been merely a curiosity. But when, as now, particular protocols and costs regimes are applied to particular types of claims, classification becomes important. When a claim fulfils the claim type definitions in both the RTA and... |
 Case Closed on the Cancellation Regulations? - Aidan Ellis, Temple Garden Chambers The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008 render certain agreements between a trader and consumer unenforceable, if the consumer was not provided with a correctly drafted notice setting out his right to cancel the agreement. In cases such as... |
 Opoku v Tintas - Melanie Mooney, Keoghs In handling credit hire claims it is always preferable to focus on obtaining clarity for issues where there is a degree of uncertainty for all parties dealing with the claims. |
 Accidents at Sea: the Limitation Traps for Claimants and Defendants - Ian Miller, 1 Chancery Lane The Athens Convention is notorious for catching out PI practitioners with its current two year limitation period* for accidents at sea. Indeed the few reported cases on it are mainly concerned with whether it is possible to extend time (Higham v Stena) or whether a cause of action exists outside the Convention (Norfolk v My Travel) - both resulted from a failure to issue in time. |
 Can a Defendant Be Required to Disclose Information About Its Insurance Position? A Recent Decision With a Sting in the Tail - Jack Harding, 1 Chancery Lane Any practitioner who has had to grapple with the issue posed in the title to this article will have come to realise that there are two conflicting decisions on the point. |
 Fraudulent Claims and Contempt of Court: if You Can't Do the Time... - Rhiannon Lewis, 1 Chancery Lane Regular readers will have come across several articles dealing with allegations of fraud or exaggeration. Indeed, allegedly fraudulent accidents appear to be occupying an ever increasing proportion of the court's time. The recent decision of Spencer J inHomes for Haringey v Barbara Fari and Piper Fari therefore serves... |
 "Call the Witness" - Lianne Naughton, 7 Harrington Street Chambers We have all heard of "Call the Midwife" and, as we head towards Christmas and the inevitable Christmas Special we know that such familiar shows bring comfort and warmth at the end of grizzly winters day and- even if things look a little dicey for a bit- all will be well in the end. |
 Lest We Forget (Our Senses) - Thomas Crockett, 1 Chancery Lane Personal injury law has a poor image in the eyes of the general public. For many reasons of course, this is unfair. Often it is the overreactions of various (frequently Public Sector) organisations who utterly overreact to potential alleged "health and safety risks". Examples are legion: conkers in schools, blu-tac on walls and... |
 A Defendant's Nightmare? - Roderick Abbot, 1 Chancery Lane Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J... |
 The Impact of Mitchell - David Johnson, President of FOIL and Large Loss Partner at Weightmans LLP The case of Mitchell v NGN is already being described as the case of the decade although it is perhaps more accurate to describe it as the case of a decade and a half as its roots go straight back to Woolf. Case management was a central theme behind Lord Woolf's proposals in 1999: he blamed lawyers for the delay in... |
 Claim for Development of Partial Cauda Equina Syndrome Fails - John Mead, The NHS Litigation Authority Bryce v Newcastle Upon Tyne Hospitals NHS Trust (Newcastle County Court, 22nd August 2012 - Judge Walton). From 2004 Mrs Bryce suffered serious ill-health, including cervical cancer. An MRI scan of her pelvis in early 2006 excluded any recurrence of the cancer... |
 Lecture to The Society of Clinical Injury Lawyers - Bill Braithwaite QC, Head of Exchange Chambers I gave a lecture recently to the Society of Clinical Injury Lawyers in Birmingham. They had a very impressive turnout, and it was a pleasure to talk to specialists. |
 The Mesothelioma Bill - Jamie Hanley, Pattinson & Brewer Jamie Hanley, partner at Pattinson & Brewer and Labour's parliamentary candidate for his home seat of Pudsey, comments on the Mesothelioma Bill. |
| Coalition Politics? - Andrew Pemberton, Director of Argent Rehabilitation It's not just Cameron and Clegg who are having to cope with coalition politics. Last month's Transport Select Committee (TSC) report was extraordinary in achieving some form consensus for the first time. Maybe the principles of coalition government are starting to rub off on the ABI, APIL, MASS and FOIL? |
Summary of Recent Cases, December 2013 Here is a summary of the recent notable court cases over the past month. |
| PI Practitioner, December 2013 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. |
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| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 Review: 'Following a Trauma, Which Children Are Most Likely to Develop Posttraumatic Stress Disorder?' (Siddaway, A and Trickey, D. Clinical Psychology Forum, May 2013) - Dr Julie Beavan Pearson, Dr Victoria Byram & Dr Jon Willows This brief article reviews a helpful and illuminating paper presented in the May 2013 edition of Clinical Psychology Forum in which Siddaway and Trickey summarise their meta-analysis of the factors influencing the development of Post-Traumatic Stress Disorder (PTSD) in children. Such studies help to identify and highlight key issues for consideration with the medico-legal context. |
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| Coronial Law Articles, Edited by Bridget Dolan, 3 Serjeants' Inn | |
 Disclosure, Suicide and Unfairness: Learning From Lagos - Neil Davy, Serjeants' Inn Chambers R (on the application of Evandro Lagos) v HM Coroner for the City of London and Anele Austin [2013] EWHC 423 (Admin). |
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PIBULJ, December 2013
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