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January 2025 Contents
 Welcome to the January 2025 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Majid Saadati v Seye Dastghaib and Andreas Rudolf Bihrer [2024] EWHC 3336 (KB) - Andrew Ratomski, Temple Garden Chambers Practitioners making hasty applications for default judgment ought to keep in mind the law of unexpected consequences. Applications for judgment in default, when not made properly, run the risk of being re-heard again and again (and again) as Saadati v Dastghaib illustrates. The judgment of Morris J follows a rolled-up appeal hearing challenging an order of Deputy Master Sabic KC ('the Deputy Master') to set aside an earlier order of judgment in default made by Master Thornett ('the Master) amongst other issues. The underlying claim concerned a loan of USD $15 million alleged to have been... |
 CXC (a protected party by her litigation friend BXB) v (1) David Clarke, (2) EUI Limited [2024] EWHC 3138 (KB) - Philip Matthews, Temple Garden Chambers CXC considers the use of intermediaries to assist vulnerable witnesses to give evidence in personal injury proceedings. On 16 September 2007, the Claimant (who was then 20-years-old) was involved in an RTA whilst a passenger in a car driven by the First Defendant. As a result of the admitted negligence, the Claimant suffered a severe brain injury and other injuries, including a fracture to her jaw. The claim was settled on 25 May 2009, before issue, in the sum of £25,000. Subsequently, the Claimant sought an order that this settlement be set aside on the basis that she... |
 Smith -v- AXA Insurance UK PlC & Spectra Drive Limited (24th December 2024) - Philip Matthews, Temple Garden Chambers Smith is the latest decision in the long-running trench warfare between credit hire companies and defendant insurers on the issue of non-party costs orders (NCPOs). Despite the hire charges in issue being just £11,809.94, both sides instructed leading silks, suggesting that the principle at stake is much more important than the sums involved. The Claimant's vehicle was damaged in an RTA, for which liability was admitted. She contacted a claims management company, Spectra, that arranged for her to hire a replacement vehicle. She subsequently made a claim for damages which included hire charges in addition to PSLA... |
 Majid Ali v HSF Logistics Polska SP Zoo [2024] EWCA Civ 1479 - Andrew Ratomski, Temple Garden Chambers Whilst Ali v HSF is a case arising in credit hire litigation, the Court of Appeal's recent decision is of broader significance to injury practitioners handling cases arising from road traffic accidents because it considers a number of practical applications of the doctrine of illegality (ex turpi causa). It will be no surprise that an illegality defence is difficult to run and difficult to succeed on. The Defendant's lorry had driven negligently into the Claimant's Volvo motorcar and the damage rendered it undriveable with repairs taking some time. The trial judge found that the Claimant needed to... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 What Do GPs Know About Mental Health? - Dr Mark Burgin Dr Mark Burgin discusses some of the reasons why GPs continue to insist that they do have expertise in mental health. Mental health is a lifelong progression from childhood experience and attachment through identity crises and bereavement. It can include serious mental illness such as depression or psychosis or mental health adjustments to life events. Prevalence figures suggest that about 1 in 6 people have mental health symptoms. 90% of all mental health consultations in the NHS are with GPs... |
 A Balanced Approach to Death and Dying - Dr Mark Burgin Dr Mark Burgin explains that suffering is an unavoidable part of the human condition and detaining dying people may be a form of clinical negligence. There have been a series of cases where hospitals have refused to allow terminally children discharge themselves. Whilst it is understandable that healthcare staff will wish to protect these children there was an unwelcome twist. In a recent case it was the near adult child who was asking to leave the hospital. This has led to medical experts questioning some of the current principles... |
December 2024 Contents
 Welcome to the December 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 PMC v Local Health Board [2024] EWHC 2969 (KB) - Philip Matthews, Temple Garden Chambers In PMC, the High Court provided instructive guidance on reporting restrictions in the clinical negligence context. The Claimant developed cerebral palsy as a result of the Defendant's negligence at the time of his birth. Liability was admitted, and substantial interim payments had been made. Prior to the quantum trial, the Claimant applied for restrictions on non-party access to unredacted documents from the Court's records. In support of their application, the Claimant's solicitors filed a witness statement that included... |
 Christine Bangs v FM Conway Limited [2024] EWCA Civ 1461 - Andrew Ratomski, Temple Garden Chambers This appeal was unusual because it is a rare example of the Court of Appeal intervening to reverse a decision to set aside the strike out of the claim. Jacobs J had set aside a strike out on account of the Particulars of Claim not being served in time and also made an order extending time for service. The judge had relied on an admission allegedly made by the Defendant, FM Conway, but since withdrawn and a combination of other factors that he held demonstrated the Claimant's case was 'very strong'. The Court of Appeal... |
 Elysa Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435 - Andrew Ratomski, Temple Garden Chambers Alton is an important decision for practitioners bringing and responding to claims arising from road traffic accidents where issues of indemnity, direct rights against insurers and foreign insurance companies arise. Powszechny Zaklad Ubezpieczen ('PZU'), the Appellant, a Polish insurance company, were unsuccessful in seeking to overturn HHJ Parker's decision to set aside an order striking out the Claimant's claim. In September 2017 the Claimant, Ms Alton, was unfortunately involved in a road traffic accident on the M20 motorway after colliding with a lorry with a Polish number plate. The lorry's driver was insured by the Appellant... |
 FXS v The Mulberry Bush Organisation Ltd [2024] EWHC 2844 (KB) - Philip Matthews, Temple Garden Chambers FXS considered issues of costs where a claimant had not succeeded in establishing negligence at trial but was successful on other issues. FXS, the Claimant, was placed at the Mulberry Bush School, the Defendant. It was alleged that during his placement, the Defendant acted negligently by (amongst other things) restraining him frequently and with excessive force; inappropriately confining him to his room; and failing to manage his behaviour appropriately. In the alternative, it was pleaded that the Defendant had assaulted the Claimant during the restraints, and/or the restraints constituted battery / trespass to the person. It was also alleged that the Defendant had falsely... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Where Does All the Money Go? - Dr Mark Burgin Dr Mark Burgin discusses how productivity in healthcare and legal practice has become stalled and why it costs more to give a worse service. Experts are significant cost in legal cases and even if their work is not publicly criticised it can be difficult to see what the money has bought. The medical legal report in 2025 is largely of similar or worse quality than a similar report 20 years ago. I have written a book which challenges these issues by showing how disability medical reports can be used to improve productivity... |
 Why Sick Doctors Make Mistakes - Dr Mark Burgin Dr Mark Burgin considers the pattern of errors made by doctors who are suffering from sickness and what steps can be taken to avoid patient harm. It has been suggested that all doctors make three mistakes a day, good doctors know that they have made the mistakes, bad doctors do not. In this article I consider what the effects of having an estimated 50% burnout rate might have on the types of mistake a sick doctor may make, their response to their errors and what can be done to reduce the harm... |
November 2024 Contents
 Welcome to the November 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Tindall and another v Chief Constable of Thames Valley Police [2024] UKSC 33 - Andrew Ratomski, Temple Garden Chambers The Supreme Court has handed down an important decision on the duty of care in negligence. Tindall revisits the vexed question in English tort law of liability for omissions and whether a party can be found liable for making matters worse (and the evidential issues that any claimant making such an allegation will typically face). The assumed facts were that Mr Kendall skidded on a patch of black ice on 4 March 2013 in the late afternoon and his car rolled into a... |
 BJB, In the Matter of [2024] EWCOP 59 (T2) - Philip Matthews, Temple Garden Chambers In BJB, In the Matter of [2024] EWCOP 59 (T2) the Court of Protection considered a seriously injured party's application to be released from a 'Peters undertaking'. As Hilder J noted, this is one of a growing number of applications for release from such undertakings, perhaps reflective of the 'natural evolution of the circumstance of persons bound by them' (§50). The underlying case arises from a hypoxic brain injury sustained by BJB at birth in 1994, causing cerebral palsy. Now in her thirties, BJB uses a... |
 Senay & Anor v Mulsanne Insurance Company Ltd [2024] EWCC 12 - Philip Matthews, Temple Garden Chambers How does a finding of fundamental dishonesty in respect of a claimant's personal injury claim impact their right to recover damage for property damage to their vehicle? This was the question before Charman J in Senay. The case arose from a road traffic accident. The Claimant was a taxi driver. There was a collision between his vehicle and that of the Defendant's insured. Liability was in dispute. The Claimant brought a claim for personal injury. He also claimed for damage to his vehicle, its recovery and storage, and in respect of credit hire... |
 Oakwood Solicitors Ltd v Menzies [2024] UKSC 34 - Andrew Ratomski, Temple Garden Chambers This significant costs judgment concerned when a client can apply to have their solicitor's bill of costs assessed under section 70 of the Solicitors Act 1974. The Supreme Court was asked to construe the meaning of 'payment' under subsection 70(4) which sets a 12-month time limit following a 'payment' within which a client must apply for such an assessment. Mr Menzies was unfortunately involved in a road traffic accident and suffered serious injuries. Oakwood Solicitors were instructed to pursue his claim for damages under a Conditional Fee Arrangement. The CFA provided that the solicitors would... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Why Experts Must Not Use GenAI - Dr Mark Burgin Dr Mark Burgin warns against using GenAI in expert reports particularly generating text, data analysis and making decisions. There is little clear advice to experts on the use of Generative AI in their reports. The courts take a neutral view arguing that they may put weight on evidence from AI. This optimistic view comes from an ignorance of the way that Generative AI works. The limitations on any benefits and the profound downside risks that are... |
 Medical Experts for Litigants in Person (LiP) - Dr Mark Burgin Dr Mark Burgin explains that Litigants in Person need a special type of expert who has expertise in their particular needs and has wide experience. Litigant in Person (LiP) struggle to find medical experts because they try to copy lawyers. Lawyers will instruct a specialist expert who can only deal with a specific issue. The specialist needs precise instructions and is not prepared to engage after writing the report. When instructed by a lawyer who fully understands the case this is the best choice. For a Litigant in Person this approach will lead to... |
October 2024 Contents
 Welcome to the October 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Difficult claimant evidence and partisan experts: Steven Wilson v Ministry of Justice [2024] EWHC 2389 (KB) - Andrew Ratomski, Temple Garden Chambers On 2 July 2018 Mr Wilson suffered life-threatening and life-changing injuries after being repeatedly and viciously stabbed by a fellow prisoner in the HMP Chelmsford prison kitchen. The assailant was himself serving a life sentence for murder and had killed his victim by stabbing. On 20 September 2024 and following a five-day quantum trial HHJ Melissa Clarke sitting as a Deputy High Court Judge awarded Mr Wilson damages in the sum of £5,400,000. Mr Wilson's injuries included a spinal cord injury with ongoing... |
 Special measures in the civil courts: IMX v Bicknell [2024] EWHC 2183 (KB) - Philip Matthews, Temple Garden Chambers Whilst it is not unusual for special measures to be imposed in criminal and family law trials involving vulnerable parties, they are a less common feature in the civil courts. IMX v Bicknell [2024] EWHC 2183 (KB), however, provides a rare example of their use in the personal injury context. The case is illustrative of the practical issues thrown up by special measures, particularly where one of the parties is unrepresented. The Claimant sought compensation for sexual abuse perpetrated against by her the Defendant, her then stepfather, when... |
 Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) - Philip Matthews, Temple Garden Chambers What are the duties of claimants' lawyers once a defendant serves evidence of fundamental dishonesty? By continuing to act on a CFA to trial, do those lawyers expose themselves to a wasted costs order? These issues were considered by Ritchie J in Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB). The Claimant fell off Aberavon pier and sustained a moderately severe brain injury. She brought proceedings against... |
 Andrew Reynolds v Chief Constable of Kent Police [2024] EWHC 2487 (KB) - Andrew Ratomski, Temple Garden Chambers Mr Reynolds was found by HHJ Brown sitting with a jury at Canterbury County Court to have been falsely imprisoned by Kent Police for a little under six days and to have been assaulted by them. However, the judge also found Mr Reynolds to have been fundamentally dishonest and pursuant to section 57 of the Criminal Justice and Courts Act 2015 ("the 2015 Act") dismissed his claim for damages... |
| Medico-Legal Articles, Edited by Dr Hugh Koch | |
 When CBT is not the answer: considering alternatives in psychological treatment following personal injuries - Dr Justin Savage, Clinical Psychologist Cognitive Behavioural Therapy (CBT) is a widely recognized psychological intervention used to treat a variety of mental health disorders and is often the most straightforward and appropriate intervention following a personal injury such as a road traffic accident. However, CBT may not always be the most appropriate intervention to deal with accident-related trauma in some cases... |
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| Clinical Negligence Medicine by Dr Mark Burgin | |
 Why relatives are being branded as troublesome - Dr Mark Burgin Dr Mark Burgin discusses how raising complaints can lead to the relatives being excluded from the ongoing care and how a clinical negligence lawyer can provide support. All health professionals make mistakes, official figures are 800k in the NHS per year (about 4 per doctor per year) however the true figure is much higher. Observation of doctors suggests that they make about one mistake a day. Although most are addressed at the time or cause no harm many are missed until the... |
 Can it be true that 25% of PI claims are fundamentally dishonest? - Dr Mark Burgin Dr Mark Burgin questions whether the explosion of Fundamental dishonesty can be justified by the recent changes in the PI industry. It has been reported that CJCA 2015 S57 Fundamental dishonesty is now raised in up to 25% of PI claims. Insurers have kept quiet about the number of successful uses of S57 but it is not likely that they would continue without some success. Solicitors who defend claims have fallen silent after an initial period of giving numbers such as 500 cases in 2019... |
September 2024 Contents
 Welcome to the September 2024 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles. CPD Note that there are no new monthly CPD quizzes since the SRA and the BSB have both updated their CPD schemes to eliminate this requirement. Reading PIBULJ articles can still help to meet your CPD needs. For further details see our CPD Information page.
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| Personal Injury Articles | |
 Novel points about group representative actions - Andrew Ratomski, Temple Garden Chambers Case: Claire Smyth v British Airways plc and Easyjet Airline Company Limited [2024] EWHC 2173 (KB). This is a notable recent example of a group representative action being struck out and raises novel points about such claims. There is much in this judgment to consider for practitioners bringing or defending representative actions on both the application of the 'same interest' principle and the judge's discretionary finding that the dominant motive for the action was a financial one... |
 New Clinical Negligence Agreement Launched - Philip Matthews, Temple Garden Chambers The updated 'Clinical Negligence Claims Agreement 2024' has been launched, replacing the 'Covid-19 Clinical Negligence Protocol' established in 2020. This updated agreement was developed through collaboration between NHS Resolution, the Society of Clinical Injury Lawyers (SCIL) and Action against Medical Accidents (AvMA), a patient safety charity. The purported aim is to 'further improve claims management practices'... |
 MoJ Quarterly Civil Justice Statics Published - Philip Matthews, Temple Garden Chambers The Ministry of Justice ('MoJ') has published its latest quarterly civil justice statics for April - June 2024. These include a number of interesting points for personal injury practitioners: - Despite a slight dip in the overall number of county court claims being lodged during this quarter, there has been an increase in personal injury cases (up 18% compared to the same quarter in 2023). On this point, the... |
 Managing the costs of costs management brought into sharp focus - Andrew Ratomski, Temple Garden Chambers Case: Peter Jenkins v Thurrock Council [2024] EWHC 2248 (KB). Managing the costs of costs management is brought into sharp focus by the recent decision of Master Thornett in Peter Jenkins v Thurrock Council [2024] EWHC 2248 (KB). The Claimant was seeking damages arising from a significant right foot and ankle injury suffered whilst at work as a refuse collector and for alleged consequential psychological sequalae. The Claim Form certified that damages would exceed £200,000. Liability was admitted and the Provisional Schedule of Loss was said to be... |
| Clinical Negligence Medicine by Dr Mark Burgin | |
 Expert: Failure to Engage - Dr Mark Burgin Dr Mark Burgin describes the common techniques that experts use to avoid engaging with the issues in a legal case. All experts have cases that they find difficult and regret agreeing to accept instructions for. Sometimes this is due to the behaviour of the lawyers, others it is that they doubt the veracity of what they have been told and sometimes they are out of their depth. The expert may decide to disengage form the process in the hope that it will go away... |
 How Does Mental Health Affect Reliability in PI? - Dr Mark Burgin Dr Mark Burgin discusses how the disability model provides an understanding of mental health as an issue when issues of reliability arise in PI legal cases. To understand reliability the expert must consider the murderer who during a psychotic episode commits crimes. There is an inconsistency between capacity to make intent and the M'Naghten Rules. Whereas is it often clear that the person with psychosis has made complex plans and therefore the capacity to make intent, the M'Naghten Rules ask the following... |
![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)
